The protester generally contends that the agency unreasonably rated its proposal as unacceptable under the safety evaluation factor. OER maintains that "it was not given a clear direction on exactly what information [the agency] was looking for in regards to requirements for safety measures" and that its proposal was "not reviewed at the same level as other firms." Protester's Comments at 1. OER also challenges the agency's evaluation of FCC's proposal under the safety factor.

In reviewing protests objecting to an agency's technical evaluation, our role is limited to ensuring that the evaluation was reasonable and consistent with the terms of the solicitation. CMI Mgmt., Inc., B-402172, B-402172.2, Jan. 26, 2010, 2010 CPD para. 65 at 2. It is an offeror's responsibility to submit an adequately written proposal that establishes its capability and the merits of its proposed technical approach in accordance with the evaluation terms of the solicitation. See Verizon Fed., Inc., B-293527, Mar. 26, 2004, 2004 CPD para. 186 at 4. The protester's mere disagreement with the agency's judgment does not establish that an evaluation was unreasonable. Akal Security, Inc., B-401469 et al., Sept. 10, 2009, 2009 CPD para. 183 at 3. Based on our review of the record, the agency's finding that OER's initial and revised proposals failed to adequately address the safety evaluation factor was reasonable and supports the agency's decision to exclude OER's proposal from further consideration.

Here, in order for a proposal to be evaluated as technically acceptable, the RFP required that an offeror provide detailed narratives that addressed each of the four identified elements of the safety evaluation factor. While OER may have taken a limited view as to what information was necessary to address the question of safety--the protester states that "safety is black and white" and "the rules and regulations have absolutely no gray area," id. at 1-2--we note that simply citing the applicable OSHA and/or ANSI rules or regulations in its proposal did not comport with the RFP's specific requirement for a detailed narrative describing the offeror's safety procedures for itself and its subcontractors, as well as the safety program and procedures employed by the offeror under similar projects it performed over the last 5 years. Because OER did not furnish all of the information required by the RFP, we have no basis to question the agency's determination that OER's proposal was technically unacceptable.

Moreover, during two rounds of discussions, the agency specifically questioned the protester with regard to its approach to managing and implementing safety procedures for itself and its subcontractors. Yet, it still failed to submit a response addressing the agency's concerns; indeed, OER provided essentially no information for the agency to evaluate regarding the firm's compliance with this evaluation factor. To the extent OER contends that the agency failed to inform OER of the level of detail sought by the agency during the two rounds of discussions, its contention is without merit. Agencies are not required to "spoon-feed" offerors during discussions, but rather need only lead offerors into the areas of their proposals that require amplification or revisions. Martin Elecs., Inc., AMTEC Corp., B-404197, et al., Jan. 19, 2011, 2011 CPD para. 25 at 6. The agency clearly advised OER during both rounds of discussions that OER needed to provide greater detail regarding its safety program.  (OER Services, LLC, B-405273, October 7, 2011)  (pdf)

We find that JRS's quotation was properly found unacceptable. In this regard, the RFQ's plain language required vendors to submit supporting documentation to show that the instructor candidate possessed the required qualifications and experience. RFQ at 25. Although the protester's quotation generally described the candidate's experience, the quotation did not include sufficient details (such as where the individual worked) for the agency to verify the experience. Furthermore, JRS failed to provide the information when repeatedly requested by the agency. Since the quotation did not contain any supporting documentation showing that the instructor candidate possessed the requisite experience, and JRS failed to provide the documentation when requested by the agency, we find reasonable the agency's determination that JRS' quotation was technically unobjectionable.  (JRS Management, B-405361; B-405361.2; B-405361.3, October 3, 2011)  (pdf)

Orion asserts that its proposal included sufficient information for the agency's evaluation, and, therefore, the agency's determination to eliminate the proposal from consideration for award was unreasonable. Protest at 8. The agency responds that because certain information regarding Orion team member costs was not included in Orion's proposal or submitted by the team members to the agency, as required by the solicitation, the agency could not evaluate the proposal for cost realism as contemplated by the solicitation's evaluation scheme and the Federal Acquisition Regulation (FAR). Contracting Officer Statement para. 15, at 4-5. According to the agency, examples of missing but required and necessary information include the direct labor rates, indirect cost rates, and ODCs of five Orion team members that were to perform work under the task order scenario PWS. Id. at 5. The agency also asserts that the missing information precluded a determination as to whether Orion team member ODCs were included in Orion's proposal. Id.

In its comments on the agency's report, Orion argues that the agency could have evaluated the realism of Orion team member costs using information contained in Orion's proposal. Comments at 6. As described above, the information regarding team member labor in the labor cost table of Orion's cost/price proposal was limited to the number of hours to be performed under a given labor category for a PWS paragraph, and the total cost, with fee, for the work. AR, Tab 7, Orion Proposal, Vol. IV, Labor Cost Table. Orion contends that the agency could have derived Orion team member labor rates by dividing the number of hours by the total cost, with fee, and then used the derived rates for its cost realism analysis. Comments at 7.

In reviewing protests challenging allegedly improper evaluations, or, as here, the rejection of a proposal based on the agency's evaluation, it is not our role to reevaluate proposals; rather, our Office examines the record to determine whether the agency's judgment was reasonable, and in accordance with the solicitation criteria and applicable procurement statutes and regulations. Ira Wiesenfeld & Assocs., B- 293632.3, June 21, 2004, 2004 CPD para. 132 at 2. A protester's mere disagreement with the agency's judgment does not establish that an evaluation, or rejection, was unreasonable. Id.

It is an offeror's responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency. CACI Techs., Inc., B-296945, Oct. 27, 2005, 2005 CPD para. 198 at 5. Any proposal that fails to conform to material terms of the solicitation may be considered unacceptable and not form the basis for an award. Gordon R.A. Fishman, B-257634.3, Nov. 9, 1995, 95-2 CPD para. 217 at 2. Even where individual deficiencies may be susceptible to correction though discussions, the aggregate of many such deficiencies may preclude an agency from making an intelligent evaluation, and the agency is not required to give the offeror an opportunity to rewrite its proposal. Jack Faucett Assocs., B-253329, Sept. 7, 1993, 93‑2 CPD para. 154 at 4, aff'd, Jack Faucett Assocs.-Recon., B-253329.2, Apr. 12, 1994, 94‑1 CPD para. 250. Further, communications with offerors before the establishment of the competitive range "shall not be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal." FAR sect. 15.306(b)(2).

As discussed above, the solicitation here provided that offerors' task order scenario cost/price proposals would be evaluated for cost realism and that proposed costs would be evaluated for reasonableness using cost analysis techniques. RFP sections M.1.1.2, M.4.0. The FAR describes cost analysis as follows:

Cost analysis is the review and evaluation of any separate cost elements and profit or fee in an offeror's or contractor's proposal, as needed to determine a fair and reasonable price or to determine cost realism, and the application of judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency.

FAR sect. 15.404-1(c)(1). With respect to cost realism analysis, the FAR provides as follows:

Cost realism analysis is the process of independently reviewing and evaluating specific elements of each offeror's proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror's technical proposal.

Id. sect. 15.404-1(d)(1). The FAR also provides that cost realism analyses "shall be performed on cost reimbursement contracts." Id. sect. 15.404-1(d)(2)

Although application of the methodology advocated by Orion would have permitted the agency to derive the fully loaded labor rates of the Orion team members for which cost information was missing, such methodology would not have permitted the agency to review the specific elements of the team members' costs to determine whether those elements were realistic or reasonable. For example, using Orion's methodology, the agency could not have derived the team members' direct labor rates or indirect costs, such as fringe benefit or G&A costs. Accordingly, application of Orion's methodology would not have permitted the agency to evaluate Orion's proposed costs as contemplated by the FAR. See FAR sect. 15.404-1(c)(2)(i)(A), (d)(1). Further, the informational deficiencies in Orion's proposal relate to specific and detailed cost evaluation criteria in the solicitation, RFP sections M.1.1.2, M.4.0, and the solicitation expressly cautioned offerors that failure to submit the information in question could result in the elimination of a proposal from consideration for award, id. sect. L.4.4.6.1.1(d). We therefore conclude that the agency reasonably excluded Orion's proposal from the competition. See Robotic Sys. Tech., B‑278195.2, Jan. 7, 1998, 98-1 CPD para. 20 at 9-10; Jack Faucett Assocs., supra; see also FAR sect. 15.306(b)(2).  (Orion Technology, Inc., B-405077, August 12, 2011)  (pdf)

AC4S protests that the agency's assessment of a deficiency under the mission support subfactor was improper because the "inadvertent omission" of the phrase "in subcontracting" from one metric did not change AC4S's intent to meet the SOO's objective to increase small business subcontracting. AC4S argues that its intent to meet the objective was apparent from Table 1 and from its proposal throughout, in which AC4S repeatedly discussed its intent to subcontract 30 percent of the work to other small business subcontractors. AC4S also argues that the agency should have corrected the missing phrase through clarifications. We disagree.

Clearly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is unacceptable and may not form the basis for award. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5. It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is unacceptable. See TYBRIN Corp., B-298364.6, B-298364.7, Mar. 13, 2007, 2007 CPD para. 51 at 5. Here, we conclude that the government-specified performance metrics were material requirements of the RFP, that the agency reasonably determined that AC4S improperly modified the performance metrics in a manner that did not conform to the terms of the RFP, and that the error was not subject to correction via clarifications.

Under a performance based contracting arrangement, such as we have here, performance metrics are more than mere proposal evaluation tools. Rather, the metrics become the measurable performance standards used to assess the contractor during performance, and to determine the application of performance incentives and disincentives. Indeed, the measures, metrics, ALQ, and incentives/disincentives establish the performance levels that are required to meet the objectives specified by the SOO, and are critical aspects of the resulting performance-based contract. In this case, the agency provided certain government-specified performance metrics reflecting the level of performance that the government required, and the agency repeatedly cautioned the offerors that these metrics were not to be revised in any way. Such clearly stated RFP terms are undoubtedly material to the needs of the government, and failure to conform to such terms renders a proposal unacceptable.

Next, based on our review of the RFP and AC4S's proposal, it is readily apparent that AC4S's modification of the performance metric at issue did, in fact, materially alter the metric's meaning. The agency explains that, based on its past experience, the awardees will likely outgrow their small business status over the course of the contract, leaving few firms to compete for future set-asides. COSF, at 10. The objective "[e]ffectively use small businesses to assure achievement of subcontracting targets allowing for mentorship of small businesses" was therefore included in the SOO to encourage awardees to "mentor and grow other small businesses, that would obtain relevant experience, and . . . enhance the competition for the next generation of small business set-asides of this kind." Id.

The applicable government-provided performance metric, "usage of SBs in subcontracting," was specified to provide a common, clearly understandable and measurable basis for monitoring awardee's success in meeting the above objective during performance. The metric, "usage of SBs," as modified by AC4S, however, fails to reflect the intent of the SOO objective to assure achievement of subcontracting targets and allow for mentorship of small businesses, or the intent of the provided metrics, because it captures AC4S's own efforts as a small business along with those of its small business subcontractors.

The extent to which AC4S's modified performance metric deviated from the SOO objective and government-specified metric is apparent when it is considered that AC4S also included its own efforts as a small business in its proposed percentage small business usage in ALQ 1.d, contrary to the RFP's instructions. In Volume IV of its proposal, AC4S stated that "AC4S is retaining 80% of the contract towards small businesses. The 80% includes 50% for AC4S." On the same page of the proposal, in Table 3 – Subcontracting Participation Goals, AC4S confirms that 30 percent of the contract will be subcontracted to small businesses. However, rather than enter the 30 percent figure from Table 3 into ALQ 1.d, as instructed, AC4S entered "80 percent."

The overall effect is that, by including its own efforts in the small business utilization percentage of ALQ 1.d, and by omitting the phrase "in subcontracting" from metric 1.d, AC4S made it possible to compensate for failure to meet its subcontracting objective by increasing its own share of contract performance. For example, if AC4S were to fall 10 percent short of its small business subcontracting target during performance, but increase its own portion of contract performance to 60 percent, AC4S would meet its modified performance metric of 80 percent small business usage and avoid performance-based disincentives, despite failing to meet the small business subcontracting target. Therefore, the omission of the phrase "in subcontracting" had a material effect on AC4S's commitment to conform to the specified small business usage metric required by the RFP.

AC4S also suggests that the omission of the phrase "in subcontracting," and the inclusion of its own efforts in the small business usage percentage should have been corrected through clarifications. We disagree. Clarifications are limited exchanges between the agency and offerors that may occur where, as here, contract award without discussions is contemplated. FAR sect. 15.306(a). An agency may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Id. However, clarifications may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or revise the proposal. Superior Gunite, B-402392.2, Mar. 29, 2010, 2010 CPD para. 83 at 4. Because the omission of the phrase "in subcontracting" in this case was both a material omission and a deficiency, the error was not subject to correction via the clarifications process.  (AC4S, Inc., B-404811.2, May 25, 2011)  (pdf)

EXCEPTION TO FIXED PRICE REQUIREMENT

Solers argues that BAH's price proposal improperly took exception to the RFQ requirement to propose a fixed price. We agree.

The requirement to propose fixed prices is a material term or condition of a solicitation requiring such pricing. Marine Pollution Control Corp., B-270172, Feb. 13, 1996, 96-1 CPD para. 73 at 2-3. Where a solicitation requests proposals on a fixed-price basis, a price offer that is conditional and not firm cannot be considered for award. Id.; SunEdison, LLC, B-298583, B-298583.2, Oct. 30, 2006, 2006 CPD para. 168 at 5 (protest sustained where the awardee conditioned its fixed price on the successful completion of a financial transaction between the awardee and a third party).

Here, the RFQ required offerors to submit proposals on a fixed-price basis. RFQ at 3. Offerors were also required to provide pricing information regarding the basis for their fixed price, including fully-loaded labor hourly rates for personnel, and information concerning the offeror's GSA schedule labor rates. Id. The contractor was to be paid fixed monthly payments based on a delivery schedule set forth in the solicitation. Id. Additionally, as relevant here, the PWS stated that the agency would provide space for contractor personnel at the government worksite as follows:

Place of Performance. The contractor shall perform the majority of work for this contract at its own facilities. The government may provide space for up to seven (7) personnel to perform work under other tasks at its office space currently located at 5600 Columbia Pike, Falls Church, VA. In early 2011, the government's office space will relocate to Fort Meade, Maryland.
RFQ, PWS sect. 9.1.


With regard to the place of performance requirement, BAH stated it "will comply with all items in PWS Section 9.0 and 9.1." AR, Tab J, BAH Revised Proposal, vol. 1, at 25.


In its cost proposal, BAH stated that its price was based on labor rates in its GSA schedule 70 contract. AR, Tab J, BAH Revised Proposal, vol. 2, at 8. The awardee further explained that its price "includes both Contractor and Government site rates." Id. BAH explained that the government site rates were provided at a lower rate as compared to the contractor-site rates, and that their use "presents a significant discount or savings, to the Government, in excess of $[deleted] over the life of the contract." Id. BAH explained that it was able to offer the discount for the following reasons:

Government site rates are offered when the Government provides suitable work facilities and related equipment (e.g.: telephone, copier, parking, furniture desktop computer, and other standard equipment and office supplies) for a period of no less than [deleted] work days at a Government site. [BAH] maintains the lower overhead rates on which the Government site labor prices are based as these [sic] or similar facilities are provided on a continuing basis throughout the task period and as long as sufficient tasking is provided to perform assignments on a full-time basis at these work sites.

Id. (emphasis added). BAH also stated, however, that in the event the conditions for the government-site work spaces set forth in its proposal did not occur, different rates could be applied:

Additionally, Booz Allen understands that a number of our engineering and development staff will spend the majority of their time working out of Government lab spaces and as such we are offering Government site rates on those staff members which represent[s] a significant discount of over $[deleted] to the Government. In the event that these conditions are not met, contractor site rates may need to be applied.

Id. (emphasis added).

In addition to the language above, Solers notes that BAH's price proposal reflects [deleted] labor hours for the base year and each option year of performance. AR, Tab J, BAH Proposal, vol. 2, attach. A, at 17-19. For the base period, the protester calculates that BAH proposed [deleted] hours at government site rates; based on BAH's calculation of [deleted] hours of labor per year per FTE, this translates to [deleted] FTEs at the government-site rates, out of the [deleted] FTEs proposed. Protester's Supp. Protest at 4-5, citing AR, Tab J, BAH Proposal, vol. 2, attach. A, at 22-35. For the 4 option years, Solers contends that BAH used government-site rates for [deleted] of the total [deleted] FTEs proposed. Id., citing AR, Tab J, BAH Proposal, vol. 2, attach. A, at 36-111. Solers contends that because these assumptions were built into BAH's price, and because the RFQ stated that the government would provide space at the government site for no more than seven personnel, BAH's price contained a exception to the fixed price that could result in BAH seeking a price high than it offered.

DISA and BAH contend that the language in the awardee's proposal was not an exception to the fixed-price requirement, and was instead merely a suggestion that BAH might request an adjustment to its fixed price in the future. The agency argues that BAH proposed a fixed price, and that regardless of what BAH stated concerning its calculation of its fixed price, the awardee was required to perform for that price. SAR at 13.

We disagree. We think that a fair reading of BAH's proposal shows that the awardee took exception to the requirement to propose a fixed price. In this regard, as stated above, BAH stated that it had based its price on government-site and contractor-site rates, and that use of the government-site rates permitted the offeror to offer "a significant discount or savings" to the agency. AR, Tab J, BAH Revised Proposal, vol. 2, at 8. With regard to the lower government-site rates, BAH stated that these rates "are offered when the Government provides suitable work facilities and related equipment . . . for a period of no less than ninety (90) continuous work days at a Government site." Id. (emphasis added). BAH's proposal also stated that it was able to offer these rates because the offeror experiences lower overhead rates when its personnel are provided space and were working full-time at the government site. Id. As noted above, BAH's price proposal was premised on its personnel performing significantly more work at the government site than was contemplated by the solicitation. Finally, BAH stated, in the event that the conditions set forth in its price proposal concerning the availability of space at the government site, the higher contractor-rates "may need to be applied." Id. The collective effect of these statements in BAH's proposal amount to BAH conditioning its offered price on a greater use of government facilities than contemplated or authorized by the solicitation, such that its offered price was conditional not firm.

On this record, we find that DISA improperly issued the task order to BAH, based on a proposal that took exception to the solicitation requirement to propose a fixed price. SunEdison, LLC, supra; Marine Pollution Control Corp., supra. Because DISA cannot accept BAH's proposal that did not offer a fixed price for award, and because Solers, which did offer a fixed price, was the only other offeror who submitted a proposal, we conclude that Solers was prejudiced by DISA's error, and sustain the protest on this basis.  (Solers, Inc., B-404032.3; B-404032.4, April 6, 2011)

ATS challenges HUD's determination that its proposal was technically unacceptable under the licensing/insurance factor. Protest at 2. With respect to the protester's ability to legally conduct real estate closings in California, ATS argues that there is no clear restriction under California law prohibiting a joint venture comprised of a licensed California firm and a non-licensed, Colorado firm, from conducting real estate closings in California. Comments at 4. Although ATS acknowledges that the joint venture agreement provided that American Title Services Company would have complete authority and control of the ATS joint venture, it argues that this did not affect Fresno's ability to conduct closings in California. See id. at 3. Accordingly, ATS contends that HUD's unacceptability determination is unreasonable, because HUD has not demonstrated that ATS will be unable to legally perform real estate closings in California.

In reviewing protests of alleged improper evaluations and source selections, our Office examines the record to determine whether the agency's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws. See ABT Assocs., Inc., B-237060.2, Feb., 26, 1990, 90-1 CPD para. 223 at 4. It is an offeror's responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency. International Med. Corps, B-403688, Dec. 6, 2010, 2010 CPD para. 292 at 7. A protester's mere disagreement with the agency's evaluation provides no basis to question the reasonableness of the evaluators' judgments. See Citywide Managing Servs. of Port Washington, Inc., B‑281287.12, B‑281287.13, Nov. 15, 2000, 2001 CPD para. 6 at 10-11.

The RFP here required offerors to affirmatively demonstrate their ability to legally perform real estate closings in California. In this regard, offerors were required to identify in their proposals applicable California law. See RFP sect. L.7(1). The TEP found that ATS had not made such an affirmative showing in its proposal with respect to the joint venture. Specifically, the evaluators were concerned that ATS had not provided any information in its proposal "'regarding how a Colorado joint venture member can legally manage its California joint venture partner with regard to performing closing services under a California license."' See AR, Tab 18, TEP Evaluation Report, at 8.

We find HUD's evaluation of ATS's proposal to be reasonable. Although ATS argues that HUD did not demonstrate that the joint venture would be unable to legally perform closings in California, it was the protester's responsibility under the RFP to affirmatively establish that the joint venture could comply with California law in performing the contract. ATS did not do so in its proposal. That is, despite the fact that Fresno may be licensed to perform closings in California, the joint venture agreement provided that the joint venture (which submitted the offer here) would be controlled and managed by American Title Services Company. ATS did not show in its proposal or in its protest submissions that this business arrangement would be permitted under state law to perform closings in California. In short, ATS merely disagrees with the agency's evaluation, which does not demonstrate that the evaluation was unreasonable.  (American Title Services, a Joint Venture, B-404455, February 4, 2011)  (pdf)

Brown protests the agency’s determination that its quotation was technically unacceptable. It argues that its quotation meets the requirements of the statement of work, and contends that any questions the agency had about the quotation could have been resolved through discussions.

Our Office reviews challenges to an agency’s technical evaluation to determine whether the agency acted reasonably and in accord with the solicitation’s evaluation criteria and applicable procurement statutes and regulations. System Eng’g Int’l, Inc., B-402754, July 20, 2010, 2010 CPD para. 167 at 4. A vendor’s mere disagreement with the agency’s evaluation is not sufficient to demonstrate that the evaluation is unreasonable. Trinity Tech. Group, Inc., B-403210, Sept. 23, 2010, 2010 CPD para. 235 at 2. Furthermore, it is a vendor’s burden to submit an adequately written quotation and it runs the risk that its quotation will be evaluated unfavorably where it fails to do so. System Eng’g Int’l, Inc., supra.

On the record before us, we find no basis to object to the agency’s evaluation. As noted above, the RFQ required that the selected vendor provide “full turn key” webcasting that meets the requirements of eight specific tasks, including providing a link to the NIST/ITL/CSD web cite and providing a webcast page with the same look and feel as the current ISPAB page with the capability to allow viewers to send, post, and tag questions to posted agenda items. RFQ at 3. The record shows that Brown’s quotation did not meet these requirements because its login requirement violated the NIST privacy policy, its webcast page did not have the same look and feel as the ISPAB page, and the quotation did not demonstrate with certainty that Brown would meet the requirement to send, post, and tag questions without further action from the agency. AR, Tab 6, Technical Evaluation, at 1-2; AR Tab 3, Statement of Evaluator, paras. 9, 11‑12, 14, 17-18.

Brown disagrees with these conclusions. It contends that its login feature can be turned off, and that the quotation’s commitment to “create the portal page for design consistency and functional compatibility with the NIST home page” satisfies the requirement to provide the same look and feel as the ISPAB page. Comments at 2, 4. Brown also denies that there is any ambiguity in its quotation that should have led to a rating of technical unacceptability. Id. at 4. It contends that, if the agency had any questions, it should have raised them during discussions. Id. at 3, 5.

However, as noted above, the RFQ advised vendors that discussions would not be conducted. RFQ at 8. Because the agency had no obligation to engage Brown in discussions about its quotation, it was imperative that Brown provide a clear and adequately written quotation. Brown’s quotation did not make clear that the login feature was an option that could be turned off, or that it was firmly committing to meet the requirements without further direction from the agency. Although Brown continues to disagree with the agency’s evaluation conclusions, it has not shown them to be unreasonable.

Based on the reasonable determination that Brown’s quotation was technically unacceptable, we find unobjectionable the agency’s issuance of the purchase order to a vendor with a higher-priced, technically-acceptable quotation.  (George T. Brown Associates, Inc., B-404398, January 26, 2011) (pdf)

HDT Tactical Systems, Inc., of Solon, Ohio, protests the elimination of its proposal from further consideration during a downselection procedure conducted by the Department of the Army in connection with its acquisition of variously-sized improved environmental control units (IECUs), under request for proposals No. W909MY-08-R-0014. HDT maintains that its IECUs were misevaluated during a testing phase of the acquisition, that the agency treated it and its competitor, Mainstream Engineering, Inc., of Rockledge, Florida, disparately, and that the agency unreasonably failed to engage in discussions.

(sections deleted)

The record shows that Mainstream's IECUs passed all applicable tests. AR, exh. C, at 4. However, during the testing of HDT's units in March 2010, its 9,000 BTU IECU failed the high temperature operational limit test, and its 18,000 BTU IECU failed the sensible cooling capacity test. Specifically, the 9,000 BTU IECU was unable to operate uninterrupted for 1 hour at a temperature of 125° Fahrenheit (F), as required; it was only able to pass the test at a temperature of 123° F. AR, exh. B, at 60. With respect to HDT's 18,000 BTU IECU, the unit was required to have a sensible cooling capacity of 13,100 BTUs per hour, but was only able to achieve a sensible cooling capacity of 12,774 BTUs per hour. Id. at 63.

Based on the results of the testing, as well as the agency's evaluation of the firms' downselection proposals, the agency made award to Mainstream at a cost/price higher than HDT's ($63,085,456 versus $41,388,969), concluding that HDT was ineligible for award based on its failure to pass all of the required tests. AR, exh. F5. After being advised of the agency's downselection decision and receiving a debriefing, HDT filed this protest.

HDT argues that the agency's evaluation of its 9,000 BTU IECU was unreasonable. According to the protester, when its unit was subjected to the high temperature operational limit test, it was connected to the wrong power source for an interval of time prior to the test; this caused the unit's compressor to overheat, thereby preliminarily predisposing it to fail the high temperature operational limit test.

In reviewing an agency's evaluation of proposals, we will not reevaluate proposals; rather, we examine the record to determine whether the agency's evaluation conclusions were reasonable and consistent with the terms of the solicitation (or, as in this case, the underlying contracts), as well as applicable procurement laws and regulations. Engineered Elec. Co. d/b/a/ DRS Fermont, B-295126.5, B-295126.6, Dec. 7, 2007, 2008 CPD para. 4 at 3-4.

We have no basis to object to the evaluation here. Even if we agreed with HDT regarding the propriety of the high temperature operational limit test, as discussed, HDT's 18,000 BTU IECU independently failed the sensible cooling capacity test, and HDT does not take issue with the manner in which that test was conducted. Since, as discussed, the express contract terms required passage of all tests in order for a proposal to be considered for award, HDT's proposal was properly excluded from further consideration based on this failure, notwithstanding the outcome of the high temperature operational limit test.

HDT asserts that the agency engaged in disparate treatment in connection with the conducting of the testing described above. According to the protester, the record shows that Mainstream was permitted to postpone its testing for a period of approximately 5 weeks; HDT explains that it, too, would have benefited from postponement of its official testing. HDT maintains that, had its testing been postponed, it could have implemented a design change to its 18,000 BTU IECU that would have enabled it to pass the sensible cooling test. HDT maintains, in this regard, that it had already devised the engineering change necessary to improve the performance of its unit, but that it chose not to activate the feature during testing because it believed a malfunctioning part needed replacing, and HDT did not believe it could effect the repair before its scheduled testing time. HDT concludes that it was unreasonable for the agency to allow Mainstream to postpone its official testing without advising HDT that it could postpone its testing.


We have no basis to object to the agency's actions here. The record shows that the agency did not advise any offeror that it could postpone its testing. Rather, Mainstream approached the agency and, on its own initiative, requested an opportunity to reschedule its official testing to a later date within 350 days after contract award (offerors were free to establish any testing date in their test plans, so long as the date was within the 350 day period). In this regard, in an affidavit submitted by the contracting officer's representative (COR) for the Mainstream contract, the COR states:

In my capacity as COR on Mainstream's contract, I received a phone call from . . . [the cognizant Mainstream representative] on March 5, 2010. He informed me that Mainstream wanted to postpone all of its official tests because Mainstream's own unofficial tests conducted at Intertek [an independent testing concern used by both firms] had gone poorly and revealed the need for further design changes. After determining that the rescheduled testing would still occur within the required 350 days after contract award (DAC) per SOW [statement of work] Para. 4.6, I granted the request. All of Mainstream's official tests were postponed to later dates, not just the official testing to be performed at ITS [Intertek]. No change was made to Mainstream's test plan except to postpone the tests for a five-week period.
Supplemental Agency Report, exh. D.

HDT did not ask to reschedule its testing date. In this connection, HDT's representative submitted an affidavit in which he states:

HDT did not believe, at the time of downselection testing, that it was a realistic option for HDT to reschedule its downselection testing for a future date, because (1) we believed that Mainstream had already tested its IECUs before HDT in early March, and that delay would reflect poorly on HDT, and (2) we believe[d] the Army would either not permit [the] delay or would hold [the] delay against HDT in its evaluation.

HDT's Supplemental Comments, Nov. 10, 2010, attach. B, at 2. However, notwithstanding HDT's subjective beliefs, nothing in the contracts specified when, within the 350 day period, testing should occur, and nothing precluded offerors from rescheduling their testing--within the larger window allowed for testing--to a later date. In addition, nothing in the contracts suggested that an offeror's decision to reschedule its testing would have a negative evaluation impact, since, as noted, offerors were free to select their own testing dates within the 350 day post-award period. Moreover, the COR for the HDT contract submitted an affidavit in which he states:

Had HDT requested that I (as COR) grant a postponement of all its scheduled official downselection testing to allow them to make additional improvements to its test units, I would have granted the request as long as test completion was not delayed beyond the contractually required date of 350 days after contract award.

Supplemental Agency Report, exh. C, at 1.

In our view, both firms made a business judgment concerning whether or not to request an extension of time to perform their official testing. In granting Mainstream's request, the agency did not waive or relax any contract requirement, or provide Mainstream an opportunity it would not also have provided to HDT had it made the same request, which it was free to do. Correspondingly, the agency was not under any legal obligation to spontaneously offer to reschedule HDT's testing, simply because Mainstream had rescheduled.

Finally, HDT asserts that the agency abused its discretion in not initiating discussions in connection with its downselection decision. Specifically, the record shows that, after determining that the HDT proposal failed to meet all of the official testing requirements and therefore was unacceptable, the agency considered proposed solutions to the deficiencies identified during the testing that were outlined in HDT's downselection proposal, but concluded that they were too vague. According to HDT, at that point, the agency was legally obligated to engage in discussions in order to afford HDT an opportunity to provide additional information that would demonstrate the soundness of its proposed solutions.

This argument is without merit. The contracts specifically advised, consistent with the requirements of the Competition in Contracting Act, 10 U.S.C. sect. 2305(a)(2(A)(ii)(I) (2006), and Federal Acquisition Regulation sect. 15.209(a), that the agency intended to make its downselection decision without engaging in discussions. AR, exhs. D1, D2, at 130. Given the terms of the contracts, and in light of the fact that HDT has neither alleged nor demonstrated circumstances that would lead us to consider a possible abuse on the part of the agency in exercising its discretion not to open discussions, this argument provides no basis for questioning the award. Kiewit Louisiana Co., B-403736, Oct. 14, 2010, 2010 CPD para. 243 at 3-4.  (HDT Tactical Systems, Inc., B-403875,December 14, 2010)  (pdf)

The solicitation, a section 8(a) set-aside, contemplated the award of a time-and-materials/labor-hour contract for a base year, with four 1-year options. RFP at L-1, F-1. The successful offeror was to be determined based on a "best value" evaluation of initial proposals. RFP at M-1. Because some members of the technical evaluation panel (TEP) were former employees of the contractors and subcontractors competing for award, the agency structured the procurement to insure anonymity of offerors, in order to achieve an unbiased evaluation. Agency Report (AR) at 2. Specifically, offerors were required to submit one original and three redacted copies of their technical proposals. RFP at L-3. The solicitation, at section L.6, stated that the redacted copies "shall not contain the name of the offeror's company, logos, markings, or photos associated with the company or the names of personnel." RFP at L-3. This requirement was essentially repeated at section L.6.c. Id. at L-4. Additionally, section L.6.d(i) stated in bold type that

Redacted proposal copies must be completely redacted of all identifying information. Failure to submit properly redacted copies may result in the offeror being excluded from further consideration.

(sections deleted)

The TEP chair explains that, because SNAP stated that its team included the incumbent contractor, which, he was aware, had "graduated" from the section 8(a) program and therefore could not be the prime contractor, he deduced that the incumbent was one of SNAP's proposed subcontractors. AR, Tab 38, Declaration of TEP Chair, at 1. The TEP chair further states that, based on this knowledge, he also could deduce the identity of the proposed personnel. Id. Based on its conclusion that SNAP had violated the identifying information redaction requirement, the agency rejected SNAP's proposal as unacceptable. AR, Tab 36, Memorandum of Law, at 8; AR, Tab 37, CO Statement, at 2. In notifying SNAP of its determination, the agency noted that SNAP had included "identifying information" in its technical proposal in violation of section L.6.d(i), and had violated "the spirit, if not the letter" of RFP sections L.6 and L.6.c. Id.


SNAP asserts that it was improper for the agency to reject its proposal based on the identifying information redaction requirement, arguing that the agency's interpretation of the requirement as established by the RFP is incorrect. Protest at 5. Specifically, SNAP maintains that the term "identifying information" in section L.6.d(i) is specifically defined in sections L.6 and L.6.c as the name of the offeror's company, logos, marking or photos that are associated with the offeror's company, or the names of proposed key personnel. Protester Comments at 3. SNAP contends that, if DOL intended a more expansive definition, the RFP should have so indicated, by, for example, adding "and all other identifying information" to the end of those clauses. Id. Similarly, the protester argues that DOL's statement that "all references to key personnel's names must be redacted" required only that names be redacted, not all identifying information, including incumbency-related information. Protester Comments at 6-7.


Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD para. 223 at 2; Fox Dev. Corp., B-287118.2, Aug. 3, 2001, 2001 CPD para. 140 at 2.


We find that only the agency's interpretation of the RFP is reasonable. The solicitation contained the explicit, mandatory requirement at section L.6.d(i) that "[r]edacted proposal copies . . . be completely redacted of all identifying information." While sections L.6 and L.6.c identified specific types of information to be redacted, nothing in the RFP indicated that the identifying information listed in these sections was intended to be exclusive, so as to relax the unequivocal general prohibition against identifying information set forth in section L.6.d(i). Absent such an express exception to the unequivocal requirement that all identifying information be redacted, there was no reasonable basis for SNAP to ignore section L.6.d(i) and interpret the requirement more loosely. Further, we note that SNAP's interpretation would render the prohibition meaningless, since, as with SNAP's proposal, offerors would be permitted to include information that could enable the evaluators to associate a proposal--directly or by deduction--with a particular firm or its subcontractors; this is the result the identifying information prohibition was intended to avoid. Since the agency's interpretation of the requirement is the only reasonable reading, and that the agency properly rejected SNAP's proposal for failing to comply with the RFP requirement. (SNAP, Inc., B-402746, July 16, 2010)  (pdf)  See (LS3 Incorporated, B-401948.11, July 21, 2010)  (pdf)

Douglass/Kenny contends that the evaluation of its proposal was unreasonable. In reviewing an agency's technical evaluation, we consider whether it was reasonable and in accord with the evaluation criteria listed in the solicitation. An offeror has the obligation to affirmatively demonstrate that its proposal will meet the government's needs, and has a duty to establish that what it is proposing will meet the solicitation requirements where required to do so. See TRS Research, B-274845, Jan. 7, 1997, 97‑1 CPD para. 6 at 3; Discount Machinery & Equip., Inc., B-253094, Aug. 2, 1993, 93‑2 CPD para. 68 at 4. Where, as here, a solicitation requires offerors to furnish information necessary to establish compliance with the specifications, an agency may reasonably find a proposal that fails to include such information technically unacceptable. Discount Machinery & Equip., Inc., supra.

Douglass/Kenny does not dispute that its concept drawings did not meet the express RFP dimension requirements for the carports and otherwise did not provide the detail required by the agency in various areas, such as landscaping, mounting systems, and storm water drainage. Instead, the protester argues that the concept drawings were simply a sample depiction, which were not intended for use in construction or to take exception to the requirements. In this regard, Douglass/ Kenny asserts that because its drawing specifically referenced another project, it should have been obvious that the drawing was not intended for this project. Douglass/ Kenny also states that it could not have provided any more meaningful detail regarding landscaping and storm water drainage because the site was still undergoing modifications.

While it may be that Douglass/Kenny did not intend for its concept drawing to illustrate the dimensions of the carports it would build, the fact remains that the drawings did not meet the material requirements of the solicitation, which required the concept drawing to meet the carport design guidelines, including the specific dimensions. Since the drawing showed dimensions that did not meet the design guidelines, the agency here reasonably found that the proposal was unacceptable in this respect, and could not be selected for award without discussions. In addition, based on our review of Douglass/Kenny's proposal, the agency could reasonably conclude that it did not include required details about other aspects of the design, such as landscaping.

Douglass/Kenny nevertheless argues that the agency unreasonably disregarded the commitment in its offer to comply with the material requirements of the solicitation, as evidenced by its submission of standard form (SF) 1442. Douglass/Kenny argues that by simply signing the SF-1442 a party agrees to and is obligated to perform, all material requirements of the RFP. However, simply submitting an SF-1442 is insufficient to comply with an RFP requirement to provide the detailed technical information necessary for evaluation purposes. See Sabre Commc'ns Corp., B‑233439, Mar. 2, 1989, 89‑1 CPD para. 224 at 5. Where a proposal contains a blanket offer of compliance to meet specifications, such as by signing an SF-1442, and also contains conflicting provisions which call that offer of compliance into question, the offer is ambiguous and may properly be rejected as technically unacceptable. TRS Research, supra. Under such circumstances, there is no requirement that the agency conduct discussions so as to allow the offeror to correct the deficiencies in its proposal, where, as here, the solicitation expressly advised that it intended to make award without discussions. See DynCorp Int'l LLC, B-294232, B-294232.2, Sept. 13, 2004, 2004 CPD para. 187 at 8.  (Douglass Colony/Kenny Solar, JV, B-402649, June 17, 2010)  (pdf)

The RFP also stated that "The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract." Id. at 11.The RFP also stated that "The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract." Id. at 11.

(sections deleted)

Compliance with FCC Requirements

Freedom asserts that the award to Enhanced was improper because its products do not comply with FCC technical requirements, and thus do not comply with "all applicable Federal, State and local laws," as required under the solicitation. Protest at 7. Specifically, Freedom argues that Enhanced's 19-inch monitor does not comply with the FCC's emissions requirements and that its products violate the FCC's labeling requirements.

This argument is without merit. The RFP did not expressly require that offered products comply with FCC requirements as a precondition to award. Rather, the RFP clause requiring compliance with all federal, state, and local laws is included in the solicitation under "Section C - Contract Clauses" and, by its terms, applies to "the contractor." General solicitation provisions mandating that "the contractor" comply with federal, state, and local laws do not require that an offeror demonstrate compliance prior to award. Rather, compliance is a performance requirement that may be satisfied during contract performance and does not affect the award decision (except, possibly, as a general responsibility matter). Further, whether Enhanced ultimately complies with the provision is a matter of contract administration that we will not review. 4 C.F.R sect. 21.5(a) (2009); Solar Plexus, LLC, B-402061, Dec. 14, 2009, 2009 CPD para. 256 at 2-3.  (Freedom Scientific, Inc., B-401173.3, May 4, 2010)  (pdf)

Sletten challenges the agency's evaluation of its technical proposal, arguing that the identified concerns were not deficiencies and could, in any event, have been corrected through clarifications or discussions. Sletten also complains that GSA did not consider the firm's lower proposed priced in selecting Mortenson's proposal for award.

Where a protester challenges an agency's evaluation of a proposal's technical acceptability, our review is limited to considering whether the evaluation is reasonable and consistent with the terms of the RFP and applicable procurement statutes and regulations. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5. Clearly stated RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award. Id.; Outdoor Venture Corp., B-288894.2, Dec. 19, 2001, 2001 CPD para. 13 at 2-3.

Here, the record shows that Sletten's proposal did not comply with a number of solicitation requirements, which the SSEB found to be proposal deficiencies. For example, the SSEB found that Sletten had failed to provide required drawings, that Sletten's floor plans were not the plans utilized for the BOMA calculations, that Sletten's BOMA calculations did not represent the solicitation's requirements, and that Sletten's design did not satisfy the minimum space requirements (such as for the district judges' chambers). See AR, Tab 12, SSEB Evaluation Report, at 6-7.

Sletten does not contend that its proposal satisfies these requirements, but instead argues that these deficiencies do not render its proposal technically unacceptable. We disagree. First, GSA found that Sletten's failure to provide required information in its proposal, such as scalable drawings and BOMA calculations, prevented the SSEB from being able to evaluate properly Sletten's proposal. Sletten has not shown that the agency's judgment in this regard was unreasonable. Moreover, the solicitation's space and allocation requirements can only be viewed as material requirements, which Sletten failed to satisfy. In fact, Sletten's actions throughout the procurement demonstrate its recognition of the materiality of the solicitation requirements, given its repeated attempts to revise its proposed design after the closing date for receipt of proposals.

We also disagree with Sletten that, to the extent the agency wanted to avoid holding discussions, these deficiencies could easily be corrected through clarifications. "Clarifications" are limited exchanges between the government and offerors that may occur when award without discussions is contemplated. Such communications with offerors, however, may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. FAR sect. 15.306(b)(2). The evaluated deficiencies in Sletten's proposal could only be corrected through discussions, as this would require a material revision of its proposal.

With respect to conducting discussions with Sletten, we have found that a contracting agency is generally not required to conduct discussions where, as here, the RFP specifically instructs offerors of the agency's intent to award a contract on the basis of initial proposals. See FAR sect. 15.306(a)(3); Colomek Sys. Eng'g., B‑291931.2, July 9, 2003, 2003 CPD para. 123 at 7. In this regard, the CO's discretion in deciding not to hold discussions is quite broad. Our Office will review the exercise of such discretion only to ensure that it was reasonably based on the particular circumstances of the procurement. Colomek Sys. Eng'g., supra. The fact that the protester in its initial proposal failed to comply with the RFP requirements does not give rise to an obligation on the agency's part to hold discussions, where discussions are not otherwise necessary.  (Sletten Companies/Sletten Construction Company, B-402422, April 21, 2010)  (pdf)

BOSS Construction, Inc., of Bellingham, Washington, protests the award of a contract to Mowat Construction Company, Inc., of Woodinville, Washington, by the Department of the Interior, Bureau of Reclamation (BoR), under solicitation No. 09SP101729 for construction services on the Weber Siphon Project, as part of the Columbia Basin Project in Grant County, Washington. BOSS argues that its proposed schedule was misevaluated as unacceptable, and that Mowat also proposed an unacceptable schedule.

(sections deleted)

BOSS argues that its proposal was improperly downgraded under the CPM schedule factor and attempts to justify its decision to propose a schedule that exceeded the completion deadline:

BOSS intentionally placed a one month lag in the start of hydroseeding and site restoration work after completion of the physical structures [by the deadline] . . . because, given the locale and seasonal weather conditions at the project site, seeding should not practically and effectively be commenced as of [the required completion date].

Protest at 5.

Accordingly, BOSS argues that it was unreasonable to downgrade its proposal based on what it argues was the only proper way to complete the work.

BoR argues that the specification clearly required completion within 18 months, and specified that schedules would be evaluated on this basis, among others. By failing to meet the 18-month completion, BoR argues that the rating of BOSS as unacceptable under the CPM factor was proper.

In reviewing a protest of an agency's evaluation of proposals, our review is confined to a determination of whether the agency acted reasonably and consistent with the terms of the solicitation and applicable statutes and regulations. Cooperativa Maratori Riuniti-Anese, B-294747, Oct. 15, 2004, 2004, CPD para. 210 at 2. A firm delivery schedule or completion date set forth in a solicitation is a material requirement, precluding acceptance of any proposal not offering to meet that date. In a negotiated procurement, any proposal that fails to conform to material terms and conditions of the solicitation is unacceptable and may not form the basis for an award. Id. at 3.

BOSS emphasizes certain provisions of the solicitation that indicated that the schedule in the offeror's proposal would not be final, and did not need to be "contract quality," and therefore the fact that its schedule exceeded the time permitted should not have been treated as a significant failure. We disagree. There is no dispute on this record that BOSS's proposed schedule exceeded the limit specified in the solicitation, and as noted above, such requirements are material. Accordingly, we cannot conclude that the agency acted improperly in rating BOSS unacceptable under the CPM schedule factor.

To the extent that BOSS argues that Mowat's proposed schedule did not show that the construction of the new siphon would be completed to allow the start of the irrigation season in mid-March, as specified in the solicitation, Supp. Protest at 1, the record does not support its claim.

BoR responds that a review of the detailed tasks within Mowat's schedule show that the firm would be able to complete testing of joints in the siphon construction on March 14 or within a day or two after, at which time water flow for irrigation could begin. Thus BoR argues it reasonably concluded that Mowat's schedule meets the requirement of making the siphon usable by the start of the irrigation season in "mid‑March."

The solicitation does not define the term "mid-March," or provide any other basis on which offerors should have understood that term to imply an exact date. Accordingly, since BoR's construction of "mid-March" to include March 14 (or a few days after that) is a reasonable one, we have no basis to question it. Even though BOSS argues that BoR should have interpreted Mowat's schedule to provide for completion of joint testing as late as March 25, BoR has pointed out that a detailed analysis of the underlying tasks (or "fragmentary networks") within Mowat's schedule undermine BOSS's interpretation. In our view, BoR has shown that its interpretation of Mowat's proposed schedule is supported by the record and is a reasonable one.  (BOSS Construction, Inc., B-402143.2; B-402143.3, February 19, 2010)  (pdf)

With regard to the agency's finding that its quotation lacked necessary detail, CDI asserts that the agency "never specified what specific[ ] processes [it] was interested in" regarding integration; thus, since its quotation addressed integration of the existing flat iron, speed controls, and interfacing of equipment and controls, with no exception to the requirements, it should not have been rejected. Protest at 1-2.

CDI's assertions are without merit. The RFQ provided sufficient guidance for preparing quotations, including requirements for both a detailed installation plan covering the proposed equipment's ability to interface and integrate with existing equipment "within the space available," and a modification plan describing how vendors would make each proposed module fully operational with the existing flat iron, including how new or existing equipment would be modified for electrical wiring, circuitry, or reprogramming. RFQ at 5, 7.

While CDI's quotation included some general statements, it failed to provide the detailed information called for. For example, the quotation stated that CDI's equipment would "easily integrate" with the existing flat iron; that speed controls of "either the feeder or folder" offered "[would] require integration"; that CDI would install a stop circuit so that the feeder would stop when the flat iron stopped; that CDI's equipment could be "interfaced by interlocking and providing an interface between all components"; and that CDI would provide its "high intelligent controls" for "smooth operation." Quotation Narrative at 1-2. The quotation further stated that "some control circuits [would] be modified allowing the feeder, ironer and folder and stackers to communicate," and that CDI considered these to be "minor modifications." Id. at 2. However, the quotation did not explain why these modifications would be minor, and did not address the specific power requirements. Further, apart from stating that various items would be accomplished by "retro‑fitting the systems in order to make one complete system," CDI's quotation lacked any detailed installation and modification plans, and did not otherwise describe "how" it would integrate and modify the proposed and existing equipment to ensure successful inter-operation. Given the absence of the required detailed plans and explanations, the TET reasonably found that it could not evaluate whether CDI's equipment would meet the stated requirements. Ervin & Assocs., Inc., B‑280993, Dec. 17, 1998, 98-2 CPD para. 151 at 6 (blanket offers of compliance with stated requirements are not an adequate substitute for detailed information necessary to establish how vendor proposes to meet agency requirements).

With regard to whether its equipment would fit within the available space, CDI cites its quotation's statements that "[a]ll systems offered [would] easily fit in the space made available and [would] provide the necessary clearances as specified," and also asserts that its drawing "clearly indicated" that CDI's equipment would fit in the current space. Quotation Narrative at 1; Protest at 2. However, the agency considered these broad statements inadequate and found CDI's drawing and brochures to be conflicting and confusing. In this regard, the TET found that the quotation did not specify complete dimensions for CDI's proposed folder/stacker, and noted that CDI's product brochures stated that "[s]pecifications [were] subject to change without notice." Quotation, attachs. 5-7. By its own estimate, based on CDI's brochure information, the TET determined that the quoted equipment, once integrated, would exceed the available length by 18 inches. SSER, Tab 10 at 3. Further, the TET inferred that, because CDI's drawing showed its stacker at a "cocked" angle, CDI was attempting to force the equipment to meet the RFQ's 16‑inch column clearance requirement, and noted that the quotation did not address whether the machine would even operate in that position. Quotation, attach. 7; SSER, Tab 10, at 2. The drawing also depicted a centerline for the existing flat iron, which suggested to the TET that CDI intended to reposition it even though the RFQ prohibited relocation of the machine. RFQ at 4. (Consistent with the TET's concern, CDI's cover letter suggested that the agency amend the RFQ, in part, to permit relocation of the flat iron. Quotation Letter at 1.) Based on the conflict between the quotation's claim that CDI's equipment would fit within the available space and the other indications that it would not, we find the TET reasonably concluded that CDI's quotation did not adequately establish that its equipment would meet the agency's requirements. We conclude that the agency reasonably rejected the quotation as unacceptable.  (Chicago Dryer Inc., B-402340, February 16, 2010)  (pdf)

A source selection evaluation board (SSEB) evaluated the proposals. Gohman's price was low at $11,125,266; Holte's was second low at $11,157,587. AR, Tab 15, Source Selection Decision, at 3. However, the SSEB determined that Gohman had qualified its offer by stating that its price did not include SAC/WAC fees¹. AR, Tab 14, SSEB Report, at 10. Due to omission of this required pricing element, the agency determined that Gohman had not agreed to be responsible for SAC/WAC fees, and that its proposal therefore was ineligible for award. AR at 7; AR, Tab 14, SSEB Report, at 10. By letter dated July 29, the Army notified Gohman that its proposal was found not to be the best value because its price was incomplete based on its exclusion of SAC/WAC fees, and that award was made to Holte. AR, Tab 9, Notice of Award, at 1.

Following a debriefing, Gohman filed an agency-level protest, arguing that the SAC/WAC fees were not required. The agency dismissed the protest, citing the language of RFP section 00800, advising offerors that they were responsible for all charges related to temporary utilities. AR, Tab 10, Contracting Officer Response to Agency Protest, at 2. On September 8, Gohman filed this protest with our Office.

Gohman asserts that, contrary to the Army's determination, it "bid everything that was required to be bid under the terms" of the RFP. Protest at 3.

Where a protest challenges an agency's technical evaluation, we will review the evaluation record to determine whether the agency's judgments were reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. Government Acquisitions, Inc., B-401048 et al., May 4, 2009, 2009 CPD para. 137 at 8. It is well-settled that a proposal that fails to conform to a solicitation's requirements cannot form the basis for an award. Id.

The evaluation and rejection of Gohman's proposal were unobjectionable. The solicitation clearly provided that the contractor would be responsible for all costs related to providing temporary utilities, that is, utilities necessary during the construction of the center. There is no dispute that sewer and water service constitute utilities--and, as noted above, the list of utilities in the Design Submittal, at paragraph 1.3, included sewer and water. It likewise is undisputed that Gohman's proposal specifically provided that its price excluded SAC/WAC fees. Under these circumstances, the agency reasonably determined that Gohman had not agreed to be responsible for the costs of SAC/WAC during construction, contrary to the RFP's express requirements, and that its proposal therefore was unacceptable.

In challenging the agency's determination, Gohman cites paragraphs 1.29 and 1.31 of the Design Submittal, and asserts that the only costs associated with utilities are those related to obtaining permits, installing temporary utilities (and returning them to their original configuration), and gaining access to the utilities. Protest at 5-6. Gohman claims that "Nowhere, however, in the Solicitation does it mention utility fees generally or SAC/WAC fees particularly," which, it asserts, "makes sense" because these fees "are not determinable until a plan is submitted to the Metropolitan Council by the Army Architect," id. at 6, and that, indeed, there may be no SAC/WAC fees assessed against the Army. Protester Comments at 2.

Gohman's argument that it properly excluded the SAC/WAC fees because the RFP did not specifically identify those fees as among the utility costs to be borne by the contractor is without merit because it ignores the plain language of RFP section 00100, paragraph 10. As noted above, that provision stated that the contractor "will pay all charges (hook up fees, metering, monthly usage, etc.) resulting from temporary utilities." This language was sufficiently inclusive that, in the absence of an exception for SAC/WAC fees, it should have been clear that these fees were among the utility charges that were to be the responsibility of the contractor. The language cited by the protester as well as the language in RFP section 00100, paragraph 10 make it clear that the contractor is responsible for all utility charges. The fact that utility fees ultimately may not be assessed is irrelevant, particularly since Gohman concedes that it does not know conclusively that such fees will not be assessed under any circumstances. Protest at 6; Protester Comments at 2.  (W. Gohman Construction Co., B-401877, December 2, 2009) (pdf)

-----------------------------

¹ Sewer and water accessibility charges (SAC/WAC).

DeVal's protest is based on a flawed premise, namely, that the RFQ did not require quotations to include any specific information apart from welding experience. Here, the RFQ advised vendors that their quotations would be evaluated under certain criteria, including experience with welding standards and a technical assessment. RFQ at 34. To this end, the RFQ, as amended, specifically advised vendors that "[p]art of the review for your quote to be considered technically responsive, is that you must include your past experience in meeting the welding standards in the SOW and Drawings" and that lack of past experience would not be counted against a quotation. RFQ, amend. 0001 at 2 (emphasis added). However, the RFQ's instructions also included the requirement that, "[a]s a minimum," vendors show "[a] technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation." RFQ at 33, incorporating by reference FAR sect. 52.212-1. The RFQ's technical requirements were set forth in the SOW and, in addition to welding standards, included requirements that the skids be fabricated based on specified drawings, specifications, and standards listed in the SOW, nondestructive test inspection load testing, applicable test reports, marking and packaging, and delivery. RFQ at 7. The SOW also provided that the contractor's facility "shall be . . . in compliance with ISO 9001: 2008 Quality Management Systems." RFQ at 6. We think the RFQ provision requiring that vendors provide sufficient information to permit the agency to "evaluate compliance with the requirements," together with the provision for a technical assessment as part of the technical acceptability determination, were sufficient to put DeVal on notice that all RFQ requirements had to be addressed in its quotation, and that the agency would evaluate the information provided in determining acceptability.

DeVal's quotation did not include information addressing all of the RFQ requirements. Rather, it only included a copy of the RFQ, with pricing and representations, a copy of DeVal's limited warranty, and welding process information. This left the agency unable to assess whether DeVal intended to meet all requirements. For example, the RFQ's SOW required fabrication of complete skids, with all constituent fabricated and procured parts and assemblies produced in accordance with the specified government drawings, Department of Defense (DoD) standards, and industry specifications and standards listed in the SOW. RFQ at 7. In this regard, the SOW identified the primary drawing (No. 3967AS100, major assembly), along with 11 revised drawings and four DoD standards. RFQ at 6. Without information from DeVal regarding its plan to fabricate the skids, the agency could not perform the technical assessment called for under the RFQ to determine that DeVal would provide items meeting these requirements. See West Coast Research Corp., B‑281359, B-281359.2, Feb. 1, 1999, 99-1 CPD para. 27 at 3 (where vendor fails to address specifically identified requirements, agency need not presume vendor's acceptance of those requirements). Likewise, while DeVal now asserts that it is compliant with ISO 9001 requirements, the failure of its quotation to address this requirement in any way made it impossible for the agency to determine that DeVal met it. We conclude that the agency reasonably evaluated DeVal's quotation as technically unacceptable. See Carlson Wagonlit Travel, B‑287016, Mar. 6, 2001, 2001 CPD para. 49 at 3 (offeror is responsible for submitting an adequately written proposal); West Coast Research Corp., supra.

The protest is denied.  (DeVal Corporation, B-402182, December 17, 2009)  (pdf)

The SFO at issue here was published in November 2008, and contemplated the award of a long-term operating lease to support the activities of NOAA’s MOC-P. Among other things, the solicitation sought offers to provide 31,000 square feet of office, warehouse and related space, 1,960 linear feet of pier space, and 20,000 square feet of equipment laydown space. Agency Report (AR), Tab 7, SFO, at 5. The solicitation provided that the lease award would be based on the offer determined to be most advantageous to the government based on application of the following evaluation factors: location of site; site configuration and management; quality of building and pier; availability; past performance and project financing; quality of life; and price. AR, Tab 7, SFO amend. 3, at 2. The solicitation also provided that: “An award of contract will not be made for a property located within a base flood plain or wetland unless the Government has determined that there is no practicable alternative.” SFO at 7.

(sections deleted)

Bellingham protests that the agency failed to comply with the SFO provision that stated: “An award of contract will not be made for a property located within a base flood plain or wetland unless the Government has determined that there is no practicable alternative.” See SFO at 7. More specifically, Bellingham protests that Newport’s proposed pier was clearly within a designated floodplain area; that the agency had no reasonable basis to conclude otherwise; and that the agency was, therefore, required to make a determination as to whether there was a practicable alternative to Newport’s offer.

The agency responds that it “properly concluded that Newport’s offered property is not located within the base floodplain,” and that, having so concluded, that the agency “was not required to and properly did not conduct a practicable alternative analysis.” AR, Tab 2, at 15. In maintaining that Newport did not propose property within the designated floodplain area, the agency refers to the fact that the “finished level” of Newport’s proposed pier is projected to be higher than 9 feet NGVD (the applicable BFE) asserting: “[I]f the finished level of the pier were built below 9 NGVD it would be located within the base floodplain and likely impacted by flooding; if it were built above 9 NGVD it would not be in the base floodplain.” Agency Response to Protester’s Comments, Oct. 16, 2009, at 2. The agency also references Newport’s conclusory representation, provided in response to the agency’s discussion question, quoted above, that “all proposed facilities and structures will be designed above the BFE.” On this basis, the agency maintains that it reasonably concluded that Newport’s proposed pier was outside the designated floodplain area and, accordingly, maintains the agency had no obligation to--and did not--consider whether there was any practicable alternative.

Our Office has previously considered whether, in leasing real property, an agency has properly considered the particular floodplain requirements that are at issue here. See, e.g., Ronald Brown, B-292646, Sept. 20, 2003, 2003 CPD para. 170; Vito J. Gautieri, B‑261707, Sept. 12, 1995, 95-2 CPD para. 131; Alnasco, Inc., B-249863, Dec. 22, 1992, 92-2 CPD para.430; Wise Inv., Inc., B-247497, B-247497.2, 92-1 CPD para. 480; Oak Street Distribution Ctr., Inc., B-243197, July 2, 1991, 91-2 CPD para. 14; Western Div. Inv.; Columbia Inv. Group, B-213882, B-213882.2, Sept. 5, 1984, 84‑2 CPD para. 258. In this regard, we have noted that the floodplain requirements flow from Executive Order (EO) No. 11988, 42 Fed. Reg. 26,951 (1977), which precludes a federal agency from providing direct or indirect support of flood plain development when there is a practicable alternative. We have further noted that the purpose of EO No. 11988 is to minimize the impact of floods on human health and safety, as well as to minimize the impact on the environment. See Vito J. Gautieri, supra., at 2-3. In considering compliance with these floodplain requirements, we have held that an agency must, at a minimum, consider whether a proposed structure will be located within a designated floodplain area. See, e.g., Ronald W. Brown, supra., at 1-2 (agency reasonably concluded that floodplain provisions did not bar award of lease where proposed building was not located within the floodplain area, even though the periphery of the site was within the floodplain); see also Oak Street Distribution Ctr., supra., at 3-4 (agency properly awarded lease where proposed building was not within floodplain); cf. Wise Inv., Inc., supra., at 2-4 (award of lease not prohibited where ground level of site had been elevated by filling).

Here, based on the record discussed above, there can be no reasonable doubt that Newport’s offer proposed to build its pier structure within the designated floodplain area. Further, as noted above, Newport’s construction of the pier was a significant aspect of its offer in that the solicitation required offerors to provide a minimum of 1,950 linear feet of pier space. AR, Tab 7, at 7. Finally, it is clear that the pier structure may have an environmental impact on the floodplain area within which it is to be located.

As discussed above, Newport’s proposed pier construction within the designated floodplain area was expressly presented to the agency by the very engineering firm the agency retained to, among other things, inform the agency on floodplain matters. Consistent with that notification, in conducting discussions with Newport, the agency requested that Newport address the floodplain issue in the context of the location of its proposed pier; yet, Newport did not. Finally, the fact that the “finished level” of the pier may be above the BFE has no bearing on the clearly apparent fact that the pier structure itself is to be constructed within the designated floodplain area, which will, among other things, require Newport to drive hundreds of concrete piles “approximately 15 feet below the mudline.” See AR, Tab 20 at 4-18. In this regard, neither Newport’s proposal nor the agency’s contemporaneous evaluation documents, address the specific environmental issues identified in the EA report, including the potential for debris to be trapped against the concrete pier piles or the pier’s alteration of the way floodwaters circulate and flow within the bay.

On this record, there was no reasonable basis for the agency to conclude that Newport’s proposal did not fall within the scope of either the solicitation’s express floodplain limitations or EO No. 11988’s limitations regarding potential environmental impacts. Accordingly, the agency was required to consider the environmental impact of Newport’s proposed pier structure and to determine whether there was a practicable alternative to Newport’s offer; the record is clear it did not.  (Port of Bellingham, B-401837, December 2, 2009)  (pdf)

The RFP, which contemplated the award of a cost-reimbursement contract for a 3-year base period with four 1-year option periods, provided that cost would be evaluated by adding the total proposed cost for the base period and all option periods. RFP at 72. The RFP also stated that the agency intended to make award on the basis of initial proposals, without discussions. Id. at 65. Manthos submitted a cost proposal for the base period, but did not include any pricing for the option periods. Protest at 5; Agency Report at 4. The agency did not reject the proposal but, instead, attempted to calculate option prices from the information included in the proposal. The agency ultimately determined that TEC's proposal, not Manthos's, represented the "best value," and thus made award to TEC. Manthos challenges the evaluation and selection decision on several grounds.

The protest is without merit. While the agency did not reject Manthos's proposal for failure to include option prices, this omission rendered the proposal unacceptable. In this regard, since offerors were required to provide option year prices and those prices were to be evaluated for purposes of determining the total evaluated price, option prices were a material solicitation requirement. Robotic Sys. Tech., B‑271760, May 14, 1996, 96-1 para. 229 at 4. In a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Cajar Def. Support Co., B‑239297, July 24, 1990, 90-2 CPD para. 76. Since Manthos did not provide the required option year prices, its proposal did not conform to the material terms of the RFP, and therefore could not be accepted for award. See Joint Venture Penauillie Italia S.p.A; Cofathec S.p.A; SEB.CO S.a.s; CO.PEL.S.a.s., B-298865, B-298865.2, Jan. 3, 2007, 2007 CPD para. 7 at 6.

Manthos argues that the agency should have permitted Manthos to provide its missing option year prices through clarifications. We disagree. In this regard, clarifications are "limited exchanges" agencies may use to allow offerors to clarify certain aspects of their proposals or resolve minor or clerical mistakes. Federal Acquisition Regulation (FAR) sect. 15.306(a)(2). As is relevant here, an agency may allow an offeror to correct a mistake or clerical error in a cost or price proposal through clarifications only where both the existence of the mistake and the amount intended by the offeror are apparent from the face of the proposal. Joint Venture Penauillie, supra, at 8. Here, while it was clear from Manthos's proposal that the option year pricing had been omitted, the proposal specifically stated that "Option Years 1 through 4 will also be priced upon request." Cost Proposal at 8. Based on this statement, it is clear that the omission was not a mistake--despite the clear requirement in the RFP for option year prices, Manthos purposely omitted them from its proposal. Under these circumstances, the option prices could not be added through clarifications.  (Manthos Engineering, LLC, B-401751, October 16, 2009) (pdf)

OLCR Inc. of Chester, Pennsylvania, and Revolutionize of Las Vegas, Nevada, protest the rejection of their proposals under request for proposals (RFP) No. DJD-09-R-0017, issued by the Drug Enforcement Administration (DEA), Department of Justice, for basic cable television service at DEA's Training Academy in Quantico, Virginia. OLCR and Revolutionize, which provide satellite television service, argue that the RFP did not require the contractor be a cable service provider.

(sections deleted)

In sum, we conclude that the protesters knew, or should have known, that satellite service would not be permitted under this RFP for basic cable service. In this regard, we do not agree with the protesters that the inclusion of NAICS code 517110 indicated that satellite service providers would be permitted to compete under this RFP. Although the NAICS code does include both cable and satellite television services, it also includes other types of services such as telephone, broadband Internet, and Voice over Internet Protocol services that are not being solicited here. As the agency explains, the RFP did not solicit proposals for a wired telecommunications carrier generally, which could include any number of the services listed under the code, but specifically solicits cable video programming. Apart from the reference to satellite service in the NAICS code, the RFP, read as a whole, reasonably informed vendors that the agency was seeking basic cable service, not service from satellite providers.  (OLCR Inc.; Revolutionize, B-401575; B-401575.2, September 24, 2009)  (pdf)

Controlled Systems argues that MCPA's quotation does not comply with a material term of the solicitation, and should have been found to be technically unacceptable. Specifically, the protester contends that by including the term--"FOB Point: Shipping Point" in its quotation--MCPA took exception to the solicitation requirement for "FOB Destination."

A quote that fails to conform to the material terms and conditions of the solicitation should be considered unacceptable and may not form the basis for an award. See, Muddy Creek Oil and Gas, Inc., B-296836, Aug. 9, 2005, 2005 CPD para. 143 at 2.

Here, we find that MCPA's quote did conform to the RFQ's material terms and conditions. With respect to the delivery terms, although MCPA's quotation stated that delivery would be "FOB Shipping Point," the firm quoted a price for delivery, "FOB Destination" to Fort Sill, which was part of MCPA's total price. Given that MCPA quoted complete pricing for the supply, delivery and installation of the power converters on a turnkey basis, as contemplated by the RFQ, we think that the Army reasonably concluded that the inclusion of the "FOB shipping point" term, which was inserted below the firm's quoted prices and was not specifically associated with any of the priced CLINs, was a minor error. The purchase order issued to MCPA by the Army provided for delivery to Fort Sill at the price quoted by MCPA. Agency Report, Tab 22, Purchase Order, at 4.  (Controlled Systems, B-401208.2, July 8, 2009)  (pdf)

Ashbury maintains that, while Horus offered in its FPR to provide an alternate reticle that purported to meet the requirements and objective of the RFP, in fact, its proposal did not provide the agency with a reasonable basis for finding it acceptable. More specifically, Ashbury maintains that the agency improperly failed to test Horus's replacement reticle, as contemplated under the RFP, instead accepting Horus's mere promise to provide a compliant reticle. Ashbury asserts that this promise could not reasonably form the basis for the agency to find that the replacement reticle met the objective of the RFP of being similar to the reticle currently in use in the USMC Scout Sniper Day Scope, or that it was technically equivalent to the one offered by Ashbury.

Agencies are required to evaluate proposals in a manner that is consistent with the terms of the solicitation. Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc., B-309752 et al., Oct. 5, 2007, 2008 CPD para. 83 at 10. Our review of the record shows that the agency improperly failed to obtain a telescope from Horus that was configured with its alternate reticle and, consequently, did not evaluate and test the alternate reticle proposed by Horus in accordance with the requirements of the RFP.

As quoted above, the solicitation provided that the agency "will subject production samples to any and all of the examinations and tests specified in the detailed performance Specification." RFP at 68. The record shows, however, that, after receiving Horus's proposal revision, the agency neither required Horus to identify a specific model nor did anything to examine or test Horus's proposed alternate reticle. The record contains no indication that the agency obtained a sample telescope with the alternate reticle installed, or that it in any way critically evaluated the change in the firm's proposed reticle, despite the fact that this was a key attribute of the telescopes. Instead, the agency accepted Horus's unsubstantiated representation that its alternate reticle was [deleted] and, in apparent reliance on that representation, concluded that its alternate reticle was not only acceptable, but also met the performance specification objective of being similar to the reticle in the USMC Scout Sniper Day Scope. In this regard, the agency's second technical evaluation report simply notes, without elaboration, that the alternate reticle meets the objective requirement of the performance specification of being similar to the reticle in the USMC Scout Sniper Day Scope. Technical Evaluation Report, Nov. 26, 2008, at 3.

The agency's actions were unreasonable in view of the fact that Horus's originally‑proposed reticle was found technically unacceptable. In contrast, as noted, the reticle offered by Ashbury was shown through the agency's testing procedures to have met both the threshold requirements and the objective of the performance specification of being similar to the reticle in the USMC Scout Sniper Day Scope. The agency's acceptance of the alternate Horus reticle was unreasonable because doing so was inconsistent with the stringent testing requirements that the RFP stated would be applied to establish technical acceptability. Moreover, the agency's actions constituted an improper waiver of the testing requirements for Horus, but not Ashbury. As a result of the waiver, although Horus's proposal was higher priced than Ashbury's, it is not clear whether Horus submitted a technically acceptable proposal. Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc., supra. We therefore sustain this aspect of Ashbury's protest.  (Ashbury International Group, Inc., B-401123; B-401123.2, June 1, 2009)  (pdf)

The RFP's statement of work established the following requirement:

The contractor shall have a facility within 15 miles of CMS for the duration of this contract. The contractor's Project Management staff shall be located at this facility. The facility must accommodate contractor staff working on this contract and provide for meeting space.

RFP sect. C.1.2. NGIT asserts that CGI's proposal did not comply with this provision because CGI proposed to perform the majority of its work at a facility more than 15 miles away from CMS headquarters, in Woodlawn, Maryland. The agency responds that its evaluation was reasonable because this provision required only that project management staff--not all staff--perform at the nearby facility, and CGI met this requirement.

To be reasonable, the interpretation of solicitation language must be consistent with the solicitation when read as a whole and in a manner that gives effect to all of its provisions. BellSouth Telecomm., Inc., B--258321, Jan. 6, 1995, 95--1 CPD para. 10 at 6. NGIT's assertions here simply are not reasonable. Reading the quoted provision as a whole, while it is plain that offerors were required to have a facility within 15 miles of CMS headquarters, it is just as plain, contrary to NGIT's interpretation, that the provision does not require all staff to be located there; rather, only project management staff is specified. The remainder of the provision only generally calls for accommodation of staff working on the contract and provision of meeting space; it does not require that all other contractor personnel be located at the facility. To read the provision otherwise would make the requirement specifying the location of project management personnel redundant and the provision, at best, patently ambiguous; the protester was obligated to challenge any such ambiguity prior to submitting its proposal. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2009); see, e.g., Poly‑Pacific Techs., Inc., B‑293925.3, May 16, 2005, 2005 CPD para. 100 at 3. We conclude that there was no basis for the agency to reject or downgrade CGI's proposal for proposing to locate non-project management staff more than 15 miles from CMS.

Our conclusion is not changed by NGIT's reliance on the RFP's requirement that the contractor "interact" with CMS personnel (RFP sect. C.2) and to work "closely" with CMS personnel on numerous tasks listed in RFP section C.3. These provisions do not require that the interaction or work occur at a facility within 15 miles of CMS. Likewise, NGIT's assertion that, under its incumbent contract for a portion of this requirement, members of its technical staff were "routinely" called upon to attend impromptu face-to-face meetings (Response to Motion to Dismiss at 3) is not a basis for finding that the RFP here required offerors to propose to locate all staff at the nearby facility. Each federal procurement stands on its own; prior practice involving meetings at a nearby facility does not establish the same requirement here. See Sabreliner Corp., B-275163 et al., Dec. 31, 1996, 96-2 CPD para. 244 at 2 n.2. In fact, the provision calls for the facility to include meeting space, but does not mandate that all staff work be performed at the site.  (Northrop Grumman Information Technology, Inc., B-401198; B-401198.2, June 2, 2009)  (pdf)

The RFP, which contemplated award of up to 10 fixed-price, indefinite-delivery/indefinite-quantity contracts, contained the Federal Acquisition Regulation (FAR) Rights in Data-Special Works clause, which states in part that the “Government shall have unlimited rights in all data delivered under this contract.” FAR sect. 52.227-17(b)(1).

(Sections deleted)

The protester’s initial proposal made no mention of the Rights in Data clause; its final revised proposal contained the following language: “All materials will be cleared for educational and museum presentation use for the life of the programs, up to twenty years.” Agency Report (AR), Tab 11, Protester’s Final Proposal Revisions at 17. The protester’s proposal received 95.64 points, including seven out of ten points under the comprehensive plan factor. Nonetheless, the contracting officer (CO) found the proposal unacceptable, however, because it took exception to the Rights in Data clause and the clause regarding ownership of products, quoted above, by restricting the nature and the duration of the agency’s use of the materials to be produced under the contract.

The protester argues that an offeror’s understanding of the Rights in Data clause was but one portion of the comprehensive plan factor, which was worth a maximum of ten points, and that the failure of the protester’s proposal to comply with that clause was properly considered in the comprehensive plan factor scoring. Having considered this aspect of the proposal under the criterion announced in the RFP, the CO’s subsequent determination that the protester’s proposal was unacceptable was inconsistent with the RFP, the protester asserts, given the overall high score that the proposal received. We disagree.

In negotiated procurements, a proposal that fails to comply with the material terms[2] of the solicitation should be considered unacceptable and may not form the basis of award. Nordic Air, Inc., B-400540, Nov. 26, 2008, 2008 CPD para. 223 at 3. We will not disturb an agency’s determination of the acceptability of a proposal absent a showing that the determination was unreasonable, inconsistent with the terms of the solicitation, or in violation of procurement statutes or regulation. Id. Further, when a dispute exists as to the exact meaning of a solicitation requirement, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation. Id. Here, it is unclear what purpose was served by the agency’s inclusion of an offeror’s understanding of the Rights in Data clause as one aspect of the comprehensive plan evaluation factor. But the protester’s interpretation--that the agency was restricted to the comprehensive plan evaluation factor when considering a proposal’s understanding of that clause--negates both the text of the clause, which is included in full in the solicitation, as well as the Ownership of Products provision in the RFP, quoted above, requiring offerors to grant to the agency unrestricted use of the materials produced under the contract. When read as a whole, then, the only reasonable interpretation of the RFP is that it requires proposals to offer the agency unrestricted data rights. Because the protester’s proposal failed to do so, we see no reason to question the agency’s decision to exclude it from the competition as unacceptable.

The protester argues that, because its proposal contained no explicit deviations or exceptions, under the RFP’s standard “deviations and exceptions” clause,[3] the agency could not reasonably conclude that the proposal offered the agency less than unrestricted rights in the materials produced under the contract. The protester’s proposal restricted the agency’s manner and duration of use of the materials created under the contract. To say that such a statement may not be deemed a deviation from the terms of the RFP because it was not in a proposal section labeled “deviations and exceptions” is an unpersuasive attempt to elevate form over substance. The plain language of the protester’s proposal clearly took exception to a material term of the RFP.

Even if its proposal had taken such an exception to the RFP, the protester argues, “this would not have afforded the government the right to find the offer ‘unacceptable’, under the explicit terms of the very contract clause that the NPS itself drafted.” Comments on AR at 2. We disagree. The deviations and exceptions clause merely states that deviations from the terms of the RFP will not automatically render a proposal unacceptable, and the record in this case does not support an allegation that the protester’s proposal was “automatically” deemed unacceptable. Rather, the CO determined that the protester’s final proposal revisions failed to comport with a material term of the solicitation, and she therefore determined that the proposal was unacceptable.  (Northern Light Productions, B-401182, June 1, 2009) (pdf)

Spectrum first protests that the products offered by MTM do not have a Federal Information Processing Standards (FIPS) 140-2 validation, and as such do not meet a mandatory requirement set forth in the solicitation. The protester's argument here is based upon Spectrum's analysis of publicly-available information concerning MTM's quoted product, and Spectrum's understanding of the FIPS validation process.

The record reflects that in evaluating MTM's quotation the agency found that MTM had responded "yes" to the requirement set forth in the RFQ's Vendor Solution Matrix that the "[c]ryptographic module in the product is NIST [National Institute of Standards] FIPS 140-2 compliant," and that MTM's quotation also expressly provided that MTM "uses a FIPS 140-2 Certified Cryptographic module in all products." Agency Report (AR), Tab 2, MTM Quotation, at 14.

Based upon our review of the record, the agency reasonably found that MTM's quotation provided the information requested by the solicitation, and agreed without exception to furnish a product in accordance with the terms of the solicitation. While Spectrum contends that the agency could not accept MTM's quotation representation without further investigation, an agency may accept a quotation's representation that indicates compliance with the solicitation requirements, where there is no significant countervailing evidence reasonably known to the agency evaluators that should create doubt whether the offeror will or can comply with the requirement. Alpha Marine Servs., LLC, B-292511.4, B-292511.5, Mar. 22, 2004, 2004 CPD ¶ 88 at 4. Here, notwithstanding the detailed arguments by Spectrum as to why MTM's quotation will not provide a product that meets the FIPS 140-2 certification requirement, the record does not indicate there was any countervailing evidence reasonably known to the agency evaluators before award that should have created doubt that MTM would or could honor its quotation. Whether MTM actually delivers a product compliant with the terms of the solicitation is a matter of contract administration, which is for consideration by the contracting agency, rather than our Office. Standard Mfg. Co., Inc., B‑236814, Jan. 4, 1990, 90‑1 CPD ¶ 14 at 3. GAO does not review matters of contract administration under our bid protest function. 4 C.F.R. § 21.5(a) (2008); Nilson Van & Storage, Inc. B‑310485, Dec. 10, 2007, 2007 CPD ¶ 224 at 4.  (Spectrum Systems, Inc., B-401130, May 13, 2009)  (pdf)

KBR argues that the agency's determination that its proposal was unacceptable was unreasonable. The protester first argues that its force protection "assumption is consistent with the terms of the RFP," and "merely describes certain circumstances KBR anticipates may occur during the course of performance and states KBR's understanding of the manner in which the Army would respond." Protest at 10. The protester continues here by providing a lengthy explanation as to why, in its view, the force protection assumption set forth in its proposal "was nothing more than a brief encapsulation of those solicitation provisions" pertaining to force protection. Protester's Comments at 14. The protester argues that "[n]owhere does the Assumption state or suggest that KBR would determine what constitutes 'necessary force protection,'" and that "[i]t is clear to KBR . . . that a contractor cannot issue orders to the military regarding the deployment of military forces for force protection." Protester's Comments at 3, 17.

The protester further argues that the Army's determination that KBR's force protection assumption rendered its proposal unacceptable was unreasonable because "[n]owhere in KBR's proposal is there any explicit or implicit statement by KBR that its performance is contingent upon the [force protection assumption]," and that the "assumption can have no effect on the cost that KBR would ultimately charge to the Army" because of other RFP provisions that require Army approval under "stringently defined conditions" before the contractor can incur force protection costs. Protest at 11. The protester also points out that it "included a nearly identical assumption in its proposal for this same work under the LOGCAP III proposal, and the solicitation and task order for this work under the LOGCAP III contract contains similar force protection provisions." Id. at 11 n.1.

The evaluation of proposals is a matter within the discretion of the contracting agency, and in reviewing protests against allegedly improper evaluations, it is not our role to reevaluate proposals. Rather, our Office examines the record to determine whether the agency's judgment was reasonable, in accord with the evaluation factors set forth in the solicitation, and whether the agency treated offerors equally in its evaluation of their respective proposals and did not disparately evaluate proposals with respect to the same requirements. Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc., B-309752 et al., Oct. 5, 2007, 2008 CPD para. 83 at 10. A protester's mere disagreement with the agency's judgment does not render the evaluation unreasonable. Landoll Corp., B-291381 et al., Dec. 23, 2002, 2003 CPD para. 40 at 8.

The agency explains that "there is perhaps no more crucial issue in a contract for the provision of services on the battlefield, than the level of force protection to be provided by the military to the contractor." Contracting Officer's Statement at 7. The agency's overriding concern with KBR's force protection assumption was that "the entire assumption implies that KBR will be the one determining what 'necessary force protection' it will require." AR at 4; see Contracting Officer's Statement at 4; AR, Tab 9, Decision by Task Order Determining Official to Remove KBR from Consideration for Award (Oct. 29, 2008), at 2. The agency explains that this is in direct conflict with the provisions of the applicable contract clauses, and, as incorporated by reference, chapter 6 of Army Field Manual 3-100.21 and the "Applicable Theater Anti-Terrorism/Force Protection Guidelines," which provide that determinations as to whether force protection is needed and at what level rest with the combatant commander and are to be made in accordance with those publications. AR at 4-5; Contracting Officer's Statement at 4-5;

The agency also points to several specific clauses in KBR's assumption that cause the agency concern. For example, the second sentence of KBR's force protection assumption states that the provision of "necessary" force protection "includes, but is not limited to, the security at the KBR work site and movement throughout the Area of Operations, to include between work sites, living/messing areas and ingress/egress to the Area of Operation." See AR, Tab 13, KBR Proposal, Proposal Narrative, at 3. The agency argues that the requirement that force protection be provided to KBR personnel "between work sites, living/messing areas and ingress/egress to the Area of Operation" is "an overt augmentation of the solicitation provisions." Contracting Officer's Statement at 5. The agency adds that, in its view, KBR's force protection assumption, through the use of the phrase "includes, but is not limited to," in describing the force protection to be provided, "establishes a minimum level of force protection to be provided by the military, and then goes on to subject the Government to indeterminate responsibility for the provision of force protection." Id.

The agency also argues that the last sentence of KBR's force protection assumption, which states that "[i]t is assumed soldiers will be positioned in over watch of the site and where KBR personnel encounter a hostile threat, it is further assumed that U.S. Army personnel will intervene without delay," constitutes an "augmentation of the force protection provisions of the solicitation." Contracting Officer's Statement at 6; see AR, Tab 13, KBR Proposal, Proposal Narrative, at 3. In this regard, the agency contends that KBR's assumption that "'soldiers will intervene without delay' imposes a requirement that impinges upon the combatant commander's latitude in determining the appropriate course of action in hostile circumstances." Id. at 6.

Finally, with regard to KBR's argument that its force protection assumption should not cause the agency concern because "KBR included a nearly identical assumption in its proposal for this same work under the LOGCAP III proposal, and the solicitation and task order for this work under the LOGCAP III contract contains similar force protection provisions," see Protest at 11 n.1., the agency notes that "force protection has been a contentious issue" under that contract. Contracting Officer's Statement at 8; see AR at 7. The agency specifically states here, and the protester does not argue otherwise, that KBR has requested "reimbursement for costs of force protection, and when denied KBR submitted a claim of $19 [million]." AR at 7.


The agency concluded that the acceptance of KBR's proposal would subject "the Government to increased risk of a contractor claim, or refusal to perform in the event of a dispute concerning what constitutes the appropriate level of force protection," and thus the agency rejected KBR's proposal as unacceptable. Contracting Officer's Statement at 8.

Our review of the record provides no basis to find the agency's evaluation and rejection of KBR's proposal unreasonable or otherwise objectionable. As explained by the parties and set forth in chapter 6 of Army Field Manual 3-100.21, "[p]rotecting contractors and their employees on the battlefield is the commander's responsibility," and "[t]he mission, threat, and location of contractor operations determine the degree of force protection needed." AR, Tab 4, Army Field Manual 3‑100.21, ch. 6, at 6-2. With regard to the agency's primary concern, we believe that KBR's force protection assumption is, considered most favorably to the protester, unclear as to who determines what force protection is necessary. That is, although KBR's assumption does not specifically state that KBR assumes that it will be able to determine or be required to have input in determinations concerning force protection, it nevertheless provides no guidance in this regard, and is thus ambiguous as to whether the assumption is consistent with, or is taking exception to, the RFP's force protection provisions. Given that the solicitation provided that force protection would be provided in accordance with, among other things, chapter 6 of Army Field Manual 3-100.21, which provides that the combatant commander determines, based upon the terms of the manual, the force protection needed for contractor personnel, we find the agency's rejection of KBR's proposal because of the ambiguity introduced by KBR's assumption to be unobjectionable. Nu-Way, Inc., B-296435.5; B-296435.10, Sept. 28, 2005, 2005 CPD para. 195 at 5; Rel‑Tek Sys. & Design, Inc., B-280463.3, Nov. 25, 1998, 99‑1 CPD para. 2 at 4.  (Kellogg Brown & Root Services, Inc., B-400614.3, February 10, 2009) (pdf)

In a nutshell, the dispute between the protester and the agency arises over the method used to calculate an offeror’s compliance with the solicitation’s small business subcontracting goals. Simply put, the solicitation established goals for various types of small businesses, which were stated in terms of a percentage of total subcontracted dollars. In calculating compliance with the stated goals, Granite first subtracts the value of its major electrical subcontractor, which is a large business, and then calculates its compliance with the solicitation’s goals. In contrast, the agency includes the value of this significant subcontract, and calculates the goals using the larger total.

Granite’s approach of deducting the value of the work to be provided by its large business electrical subcontractor before calculating its compliance with the RFP goals using the much smaller resulting number, means that Granite erred in two ways. First, its claimed percentages of the amount of total subcontracted dollars going to the various categories of small businesses were significantly overstated because they are not based on the total amount of Granite’s subcontracting dollars. In addition, because Granite overstated the resulting percentages, it failed to take the opportunity to explain why it could not meet the solicitation-required minimums. Finally, even if the agency wanted to accept Granite’s representation about why it could not meet the solicitation’s overall small business subcontracting goal--i.e., 76.07 percent of subcontracted dollars--Granite’s FPR says nothing about the other applicable small business goals--i.e., the goals applicable to WOSBs, SDBs, HUBZone small businesses, VOSBs, or SDVOSBs. In short, Granite’s proposed approach to subcontracting does not do either of the two things this solicitation required with respect to these other categories of small businesses--i.e., either meet the applicable goals, or explain why the goals could not be met.

To the extent that Granite asserts that its subcontracting plan was a draft plan that could have been revised prior to award if the agency was not satisfied, we disagree. As quoted previously, the RFP clearly indicates that the agency would evaluate an offeror’s small business subcontracting plan as part of the non-price evaluation and would then evaluate further only those proposals rated acceptable under each non-price factor. Consistent with that evaluation scheme, the agency would again review and approve the subcontracting plan of the technically acceptable offeror whose proposal was deemed the lowest-priced. This approach does not mean the agency acted improperly when it decided not to accept a proposal that did not address the requirements of the solicitation and give Granite a third opportunity to address the situation (since this matter was clearly raised during discussions) after the selection decision.

Under the circumstances here, we think the agency acted reasonably when it concluded that Granite had not responded adequately to the small business subcontracting requirements set forth in this solicitation.  (Granite Construction Company, B-400706, January 14, 2009) (pdf)

When an agency evaluates proposals for the award of a cost-reimbursement contract, an offeror’s proposed estimated cost of contract performance is not considered controlling since, regardless of the costs proposed by an offeror, the government is bound to pay the contractor its actual and allowable costs. Hanford Envtl. Health Found., B-292858.2, B-292858.5, Apr. 7, 2004, 2004 CPD para. 164 at 9; PADCO, Inc.--Costs, B-289096.3, May 3, 2002, 2002 CPD para. 135 at 5; see Federal Acquisition Regulation (FAR) sect. 16.301. As a result, a cost realism analysis is required to determine the extent to which an offeror’s proposed costs represent the offeror’s likely costs in performing the contract under the offeror’s technical approach, assuming reasonable economy and efficiency. FAR sections 15.305(a)(1), 15.404-1(d)(1), (2); The Futures Group Int’l, B-281274.2, Mar. 3, 1999, 2000 CPD para. 147 at 3. A cost realism analysis involves independently reviewing and evaluating specific elements of each offeror’s cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the unique methods of performance and materials described in the offeror’s proposal. FAR sect. 15.404-1(d)(1); Advanced Commc’ns. Sys., Inc., B-283650 et al., Dec. 16, 1999, 2000 CPD para. 3 at 5. Based on the results of the cost realism analysis, an offeror’s proposed costs should be adjusted when appropriate. FAR sect. 15.404-1(d)(2)(ii).

The evaluation of competing cost proposals requires the exercise of informed judgment by the contracting agency. We review an agency’s judgment in this area only to see that the agency’s cost realism evaluation was reasonably based and not arbitrary. Jacobs COGEMA, LLC, B-290125.2, B-290125.3, Dec. 18, 2002, 2003 CPD para. 16 at 26. An agency’s cost realism analysis need not achieve scientific certainty; rather, the methodology employed must be reasonably adequate and provide some measure of confidence that the agency’s conclusions about the most probable costs under an offeror’s proposal are reasonable and realistic in view of other cost information reasonably available to the agency as of the time of its evaluation. See Metro Mach. Corp., B-295744, B-295744.2, Apr. 21, 2005, 2005 CPD para. 112 at 10-11.

The protester argues that NAVSEA unreasonably accepted Metro’s unrealistically low capped indirect rates and failed to consider the risk presented by these low capped rates in determining that Metro’s proposal represented the best value to the government. According to the protester, this was contrary to the terms of the solicitation, which expressly stated that the agency would perform a cost realism evaluation and admonished offerors not to submit unrealistically low costs. In support of this allegation, the protester highlights the fact that Metro proposed indirect rates (overhead and G&A) at levels below its forward pricing rates, as well as the then-current information the agency had regarding Metro’s indirect rates. Because Metro capped its indirect rates at such unrealistically low levels, the protester alleges that Metro will be operating at a loss under the contract and that the agency failed to properly consider this risk in its selection of Metro for award.

The agency essentially argues that because Metro capped its indirect rates, upward adjustment to Metro’s rates was not warranted; any decision about Metro’s ability to perform at the rates capped below actual costs is solely a matter concerning Metro’s responsibility; and it in fact considered Metro’s ability to perform at the capped rates as part of its affirmative responsibility determination.

As a general matter, the contractor bears the risk of cost overruns for a particular category or type of work in a cost-reimbursement contract when the contractor agrees to a cap or ceiling on its reimbursement for that category or type of work. Thus, when offerors propose such caps, and no other issue calls into question the effectiveness of the cap, upward adjustments to capped costs are improper. Vitro Corp., B-247734.3, Sept. 24, 1992, 92-2 CPD para. 202 at 7. Here, there is nothing in the record to suggest that the rate caps proposed by Metro were in any way illusory; thus, we agree with the agency’s contention that it was not required to upwardly adjust Metro’s capped indirect rates, notwithstanding the fact that the agency itself found Metro’s capped rates to be “significantly” lower than its then-current rates.

Nevertheless, the agency could not simply ignore the risk presented by these capped rates in concluding that Metro’s proposal was the best value. As noted previously, the solicitation expressly admonished offerors not to propose unrealistically low costs because of NAVSEA’s concern that a proposal with unrealistically low costs due to an offeror’s decision to submit a proposal below its anticipated costs “may cause problems for the Navy as well as the contractor during contract performance.” RFP at 138. Recognizing that the capped indirect rates proposed by Metro shifted the risk of cost overruns for those rates entirely to Metro, the imposition of the cap in fact exacerbated the issues identified by DCAA regarding Metro’s financial condition [Deleted], and thereby further hampering its ability to perform under its government contracts--the very concern articulated in the RFP. While NAVSEA was clearly aware of the concerns regarding Metro’s financial situation, and the fact that the rate caps would potentially place Metro [Deleted], thereby potentially affecting its performance under the contract, the agency failed to consider the risks posed by Metro’s low rates.

NAVSEA argues that the issue of Metro’s ability to perform at its capped rates was solely a matter concerning Metro’s responsibility, a matter which the protester did not challenge, and was expressly considered as part of that determination. While we agree that, as a general matter, a decision about an awardee’s ability to perform a contract at rates capped below actual costs is a matter of an offeror’s responsibility, see, e.g., Vitro Corp., supra, at 7; Halifax Tech. Serv., Inc., B-246236.6 et al., Jan. 24, 1994, 94-1 CPD para. 30 at 9, where, as here, the solicitation expressly instructs offerors not to submit unrealistically low costs or prices, the risk stemming from an offeror’s decision to propose unrealistically low capped rates is a matter for the agency’s consideration in the context of its evaluation of proposals and source selection decision process. The agency’s failure to consider Metro’s capping of its rates in that context was inconsistent with the terms of the solicitation. We therefore sustain the protest in this regard. (MCT JV, B-311245.2; B-311245.4, May 16, 2008) (pdf)

The sole issue before us is the interpretation of GSAR 552.270-1(c)(7). Plaintiff argues that the inclusion of this clause in the SFO obligated GSA to consider on the merits all offers, even those deviating materially from the stated requirements. In effect, plaintiff suggests that, even though its offer did not make use of the site which formed the basis of the SFO, this clause means that there can be no non-conforming offers and that the failure to include Tin Mills in the competitive range could only be effected after a full examination of the advantages and disadvantages of its offer. It contends that the particular site on which the building was located was not, in any event, a material requirement and that Tin Mills could not be left out of the competitive range without a substantive explanation which must pass muster under an Administrative Procedures Act style review.

Defendant argues that GSAR 552.270-1(c)(7) permits GSA to consider offers that depart from solicitation requirements but does not obligate it to do so. The failure to justify a refusal to consider changing the solicitation terms, it contends, is not subject to court review. Although not strictly necessary to its argument, defendant also contends that if GSA had been interested in Tin Mills’ offer, the agency would have had to amend the solicitation and notify all bidders. The SFO process, defendant contends, should be interpreted in the context of the statutory requirement for full and open competition, 41 U.S.C. § 253, and the background principle set out in FAR 15.206, which requires the government to amend the solicitation if a proposal of interest deviates from the stated solicitation requirements.

We must first examine what, if any, obligation the GSAR clause imposes on the government to consider an offer that departs from the stated solicitation requirements. If we find that this clause imposes an obligation on the agency to consider non-conforming offers, we must then examine whether the failure to open the sale to offers which deviate from what the agency seeks is subject to court review. Only if that determination is subject to court review, need we also consider whether the government had to amend the solicitation before awarding a nonconforming offer.

We begin by noting the obvious: Nothing in the language of the clause (“Offerors may submit proposals that depart from stated requirements.”) compels plaintiff’s reading. GSAR 552.270-1(c)(7). There is certainly no explicit promise to consider non-conforming proposals. And, as we explain below, there is good reason not to imply such a promise.

In negotiated procurements, “the court will take a more deferential view of whether an agency’s actions were rational or reasonable than it will in sealed bidding.” John Cibinic, Jr. & Ralph C. Nash, Jr., Formation of Government Contracts 1554 (3rd ed. 1998) (citing Logicon, Inc. v. United States, 22 Cl. Ct. 776 (1991)); see also Cincom Sys. v. United States, 37 Fed. Cl. 663, 672 (1997) (“[contracting officials’] discretion is especially broad in negotiated procurements”); 126 Northpoint Plaza Ltd. P’ship v. United States, 34 Fed. Cl. 105, 107 (1995) (“In negotiated procurements, contracting officials possess ‘broad discretion in the process of obtaining the contract most beneficial to the government.’”) Here, the CO eliminated Tin Mills’ offer from the competitive range because it was “nonresponsive.” AR 1203. Although the concept of responsiveness or “an unconditional promise to comply with the terms of a solicitation,” does not apply directly to negotiated procurements, offers must comply with the material terms and obligations in a SFO to merit consideration. Gardiner, Kamya & Assocs., P.C., 1995 WL 19599, B-258400, 95-1 CPD ¶ 191, *2 n.1. Stated inversely, “[a] proposal that fails to satisfy a material solicitation term is unacceptable and may not form the basis for an award.” Integrated Business Solutions, Inc. v. United States, 58 Fed. Cl. 420, 428 (2003) (citing Marisco, Ltd., 1989 U.S. Comp. Gen. LEXIS 719, B-235773, 89-2 CPD ¶ 8; Minigraph, Inc.-Recon., 1990 U.S. Comp. Gen. LEXIS 1350, B-237873.3, 90-2 CPD ¶ 492).

Consistent with this general approach, GSAR 570.303-4, “Changes to SFOs,” provides that, if the government’s requirements change, “either before or after receipt of proposals, issue an amendment.” Similarly, GSAR 570.306, “Evaluating offers,” instructs COs that they “must evaluate offers solely in accordance with the factors and subfactors stated in the SFO.” This strongly suggests, not only that the agency has no obligation to consider nonconforming offers on the merits, but that it would be improper to do so without first changing the solicitation and notifying other bidders.

We also take note of FAR 15.206(d), which applies to negotiated procurements and specifically addresses when the agency must amend the solicitation. Although that regulation was not specifically incorporated in the SFO here, it reflects general background principles applicable to negotiated procurements:

If a proposal of interest to the Government involves a departure from the stated requirements, the contracting officer shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection [].

48 C.F.R. § 15.206(d). In short, only proposals of interest to the government need to be pursued, and, because they imply a departure from the advertised terms of the SFO, other bidders must be notified.

Plaintiff suggests that GSAR 552.270-1(c)(7) is an exception to this approach; that by soliciting non-conforming offers, any proposal submitted in response is per se responsive. Although Tin Mills takes the position that the alternate site it offered was not a material deviation, it argues that, even if plaintiff’s deviation from the terms of the SFO had been material, GSAR 552.270-1(c)(7) required GSA to consider and evaluate its offer. The agency could only reject it after weighing the advantages and disadvantages suggested by Tin Mills and explaining its reasoning to plaintiff and to the court. According to plaintiff, if GSA did not want to evaluate alternative proposals, it should have either not included the GSAR clause or stated that the location of the building was a mandatory requirement, exempt from this clause.

Such an interpretation would lead to a scenario for bid protests which is completely untethered to the requirements of the SFO. It would effectively make all solicitation requirements optional. The agency could be called upon to justify its stated requirements to any offeror. We cannot adopt this interpretation.

Instead, we agree with defendant that Tin Mills’ offer could be excluded from the competitive range because it materially departed from the solicitation requirements. Tin Mills had every reason to know that a fundamental predicate of the solicitation was the site selected by the government for the building. The solicitation specified that the offerors should use the 1550 Earl Core Road site in submitting proposals for the building. The executed option to purchase that site was included with the solicitation. The three amendments made to the SFO were all specific to the Glenmark site. These events left no room for plaintiff to doubt defendant’s commitment to construct a building on the Glenmark site. (Tin Mills Properties, LLC v. U. S. and Glenmark Holding, LLC, No. 08-375C, July 15, 2008) (pdf)

Product Support Subfactor Evaluation

Boeing also complains that the Air Force misevaluated Northrop Grumman’s proposal under the product support subfactor. This subfactor required the agency to evaluate the “offeror’s proposed product support approach for an efficient, effective and comprehensive support program for the service life of the KC-X fleet.” RFP sect. M.2.2.3. Specifically, Boeing contends that the Air Force improperly ignored Northrop Grumman’s refusal to commit to providing the required support necessary to allow the agency to achieve initial organic depot-level maintenance capability within the time required by the RFP, namely, within 2 years after delivery of the first full-rate production aircraft. Boeing’s Post-Hearing Comments at 84. The Air Force evaluated Boeing’s and Northrop Grumman’s proposals to be essentially equal under the product support subfactor. See AR, Tab 54, Source Selection Decision Document, at 10; Tab 55, PAR, at 34.

Offerors were informed that the long-term support concept for the KC-X program was for two levels of organic maintenance: organization level and depot level, and that a program objective was a product support approach that effectively addressed all the integrated support elements, including “[t]imely, cost effective transition to organic support.” RFP, SOO for KC-X SDD, at 1-2. One of the specific minimum program tasks required by the SOO with regard to “logistics” was for the contractor to

[p]lan for and support the Government to achieve an initial organic [depot]-level maintenance capability in accordance with the [Source of Supply Assignment Process] for core-designated workloads, at a minimum, within two years after delivery of the first full-rate production aircraft.

Id. at 14; see also RFP, SOO for KC-X LRIP and Full-Rate Production, at 1. The RFP instructed offerors to ensure that their proposed contractual statements of work (SOW) would “conform to the Government’s SOO” and that “[t[he proposed SOWs shall define the tasks required for the KC-X program, ensuring all minimum requirements of the Government provided SOOs and preliminary [work breakdown structure] have been addressed.” See RFP sections L.2.1, L.8.3.7.2.

The Air Force recognized in its evaluation that, although Northrop Grumman promised to provide the necessary planning and support for the agency to achieve an initial depot-level maintenance capability, the firm did not commit to providing this required support within 2 years after delivery of the first full-rate production aircraft, as required by the RFP. Thus, at the mid-term briefing, Northrop Grumman was informed that the timing of the firm’s proposed depot level maintenance support was “unclear,” see AR, Tab 199, Northrop Grumman’s Mid-Term Briefing, at 134, and then again at the pre-final proposal briefing, Northrop Grumman was informed that the agency had assigned it a weakness for its failure “to include the time frame for initial organic depot standup in Offeror’s Production SOW (SOO states within two years after delivery of the first full-rate production aircraft).” See AR, Tab 205, Northrop Grumman’s Pre-Final Proposal Revision Briefing, at 141. Northrop Grumman did not resolve its failure to commit to the 2-year timeframe for this product support requirement during the procurement. In the firm’s final proposal revision, Northrop Grumman stated in one place that resolution of this “timing issue will be determined in coordination with the Government at contract award” and, in another place, that action to “resolve government identified weaknesses” would occur “after contract award.” See AR, Tab 187, Northrop Grumman’s Final Proposal Revision, KC-X Program Summary Document, at 2-3.

In its final evaluation, the SSET evaluated Northrop Grumman’s refusal to commit to providing these product support services within the 2-year timeframe as a weakness. AR, Tab 46, SSET Final Briefing to SSAC and SSA, at 360, 362. The SSAC concluded that this was an “administrative documentation oversight” because Northrop Grumman had promised to provide the required services and its “cost/schedule documentation is consistent with standing up depot capability within two years of delivery of the first full-rate production aircraft.” AR, Tab 55, PAR, at 34. The SSA concurred with the SSAC that this was “merely an administrative oversight.” AR, Tab 54, Source Selection Decision, at 10.

We agree with Boeing that Northrop Grumman’s refusal to commit to the required 2‑year timeframe within which to provide these depot-level maintenance planning and support services cannot be reasonably viewed as an administrative or documentation oversight. As noted above, Northrop Grumman was clearly informed several times by the Air Force of the agency’s concern that the firm had not committed to the required timeframe, and Northrop Grumman responded that it was not resolving this failure before award. Although throughout the protest and during the hearing, the agency steadfastly asserted that Northrop Grumman’s failure to so commit was an “oversight,” see, e.g., Air Force’s Memorandum of Law at 151-53, in its post-hearing rebuttal comments, the agency admitted for the first time that Northrop Grumman’s “omission” appeared to be a conscious decision. See Air Force’s Post‑Hearing Rebuttal Comments at 9. Northrop Grumman also finally admits in its rebuttal comments that its decision to not commit to the 2-year timeframe was “intentional.” Northrop Grumman’s Post‑Hearing Rebuttal Comments at 29 n.13.

The Air Force and Northrop Grumman argue, however, that, apart from Northrop Grumman’s refusal to commit to the 2-year timeframe, Northrop Grumman committed generally and specifically to performing the planning and support services solicited by the RFP in its proposal and proposal revisions, and that the firm would otherwise be obligated to perform the required services under whatever schedule the agency chooses. See, e.g., Air Force’s Post-Hearing Rebuttal Comments at 11; Northrop Grumman’s Post-Hearing Rebuttal Comments at 29. The parties disagree as to whether Northrop Grumman’s proposal demonstrates the ability to provide the required services within 2 years of delivery of the first full-rate production aircraft, and based on our review of Northrop Grumman’s proposal and revisions, we find that it is far from clear whether or not Northrop Grumman’s proposed schedule establishes that it would perform these services within the 2-year time frame.

Whether or not Northrop Grumman’s proposed schedule accommodates providing these product-support services within the 2-year timeframe misses the point, however. By explicitly refusing to contractually commit to the 2-year timeframe for providing these services in the SOW as it was repeatedly requested to do, we think that Northrop Grumman has taken exception to this solicitation requirement. See C‑Cubed Corp., B-272525, Oct. 21, 1996, 96-2 CPD para. 150 at 3. It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award. See TYBRIN Corp., B‑298364.6; B‑298364.7, Mar. 13, 2007, 2007 CPD para. 51 at 5.

The Air Force and Northrop Grumman also argue that the 2-year requirement is not a material solicitation provision. However, their arguments in this regard are belied by the agency’s contemporaneous actions during the procurement and the testimony of the SSET product support subfactor team chief. As noted above, the agency repeatedly raised this matter with Northrop Grumman during discussions in an unsuccessful effort to have the firm commit to this solicitation requirement, and Northrop Grumman just as steadfastly refused to commit. Moreover, the SSET product support subfactor team chief identified the purpose or intent of this particular SOO requirement as follows: “It was a binding function to bind it to a specific time line,” see HT at 1216, and that this 2-year requirement was “an important requirement.” HT at 1245. We find, from our review of the record, that the requirement to plan for and support the agency’s achieving an initial organic depot‑level maintenance capability within 2 years after delivery of the first full-rate production aircraft was a material requirement.

In sum, the Air Force improperly accepted Northrop Grumman’s proposal, where that proposal clearly took exception to a material solicitation requirement.  (The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008) (pdf)

On July 25, 2007, the Air Force issued the RFP for certain air conditioning units (units capable of both cooling and heating) to be installed at locations surrounding Aviano Air Base, Italy. The RFP required the units to meet various specifications, including that they be “EUROVENT certified” in a certain class, and that the air conditioner data be available at the website www.eurovent-certification.com. AR, Tab 18, at 1. In response to the RFP, the agency received six proposals, including the protester’s and the awardee’s. While the protester proposed one item at a single price, the awardee proposed six different brands of air conditioner at different prices, with four priced lower than the protester’s. The other four proposals were eliminated from the competition for reasons not relevant here. The agency then sought information from C&H and Sanson Bruno regarding their proposed items’ Eurovent certification. Contracting Officer’s (CO) Statement at 1.  The agency determined that the awardee’s four lowest-priced items were not Eurovent certified. With regard to the fourth lowest priced item, the agency requested product information from Sanson Bruno, and ultimately concluded that this item was not listed on the Eurovent website. The agency then requested information from C&H. The protester responded with a statement from another firm--apparently the supplier of the units to C&H--that the units were “from Bonaga Italia, brand Sermond, Model SRF 12 H registered with Eurovent under the serial number MSH 12HRN1.” AR, Tab 13, B, at 3. The agency subsequently searched the Eurovent website and discovered that the brand name associated with this model number actually was Midea, manufactured by GD Midea Air Conditioning Company, Ltd. There was no mention of the brand name Sermond on the website. Legal Memorandum at 3. The agency then questioned C&H about its product a second time, and the protester responded with two more certifications, one from itself and one from Bonaga Italia. Both certifications stated that the proposed unit was marketed with the brand Sermond by Bonaga Italia, and was certified under the code MSH 12HRN1 of GD Midea Air Conditioning Equipment Company, Ltd. on the Eurovent certification website. Based on this exchange, the agency concluded that the protester’s proposal was ineligible for award because there was no item under the Sermond brand listed on the Eurovent website. The agency thus made award to Sanson Bruno for its fifth lowest-priced unit, which was listed on the Eurovent website, at a price higher than C&H’s. Upon learning that the agency had determined that its product was ineligible for award, C&H filed this protest.  C&H primarily asserts that it should have received the award because its proposed unit actually was listed on the Eurovent website. In this regard, the protester asserts that its unit was in fact the Midea unit listed on the website, the only difference between the two units being the marketing name.  Clearly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is unacceptable and may not form the basis for award. Gear Wizzard, Inc., B‑298993, Jan. 11, 2007, 2007 CPD para. 11 at 2. The procuring agency has primary responsibility for evaluating the technical information supplied by an offeror and determining the acceptability of the proposed item; we will not disturb such a determination unless it is shown to be unreasonable. Alpha Marine Servs., LLC, B‑292511.4, B‑292511.5, Mar. 22, 2004, 2004 CPD para. 88 at 4.  The agency’s determination that C&H’s proposed product was unacceptable for failing to meet the Eurovent listing requirement was reasonable. It is undisputed that C&H’s proposed Sermond brand product was not listed on the Eurovent website under the brand as stated in C&H’s proposal. This led the agency to seek information from C&H clearly establishing that its proposed Sermond product in fact was listed on the website. In response, C&H provided only statements from itself and a supplier that the Sermond product was actually a Midea product, with no independent information supporting the claim. C&H provided no supporting information from the manufacturer or from Eurovent, and the agency’s search of the website under “Midea Manufacturing” did not yield any items with the Sermond brand. Legal Memorandum at 6. We note that, in connection with its protest, C&H has provided a letter from GD Midea Air Conditioning Equipment Company, Ltd. stating that the proposed unit is in fact identical to the listed Midea unit. Protester’s Comments, Dec. 17, 2008, exh. 1. However, given C&H’s failure to provide this information in response to the agency’s request during the evaluation process, the agency reasonably concluded at that time that the protester had failed to demonstrate that its product was listed on the Eurovent website. (C&H SERVICE Srl, B-310790, February 5, 2008) (pdf)

Connectec submitted its proposal on August 9, but did not include a proposed delivery schedule. CO Statement at 2. UNICOR awarded the contract to Teutech on August 20, and posted a notice of the award on August 29. Id. Subsequently, Connectec contacted UNICOR requesting an explanation of the decision to award the contract to Teutech at a higher price. Connectec Letter, Sept. 5, at 1. UNICOR explained that Connectec’s proposal was rejected because it failed to include a proposed delivery schedule. CO Statement at 2. Connectec filed an agency-level protest, which UNICOR denied. CO Letter, Sept. 17. Subsequently, Connectec filed this protest.  Connectec does not disagree that it failed to provide delivery information. Instead, it contends that UNICOR should not have excluded its proposal from consideration for award because the agency has, in the past, awarded contracts based on proposals that did not contain delivery information.  Generally, a delivery schedule or time of performance requirement is regarded as a material requirement of a solicitation. See, e.g., Muddy Creek Oil and Gas, Inc., B‑296836, Aug. 9, 2005, 2005 CPD para. 143 at 2. A proposal that fails to conform to material solicitation requirements is technically unacceptable and cannot form the basis for award. Bannum, Inc., B-291847, Mar. 17, 2003, 2003 CPD para. 74 at 3. Here, the RFP provided for a delivery date, stated that delivery was one of three evaluation factors, and noted twice that delivery and past performance were significantly more important than price. RFP at 6, 9. Therefore, information about an offeror’s ability and intent to make timely deliveries was a material part of each proposal, and UNICOR reasonably determined that the lack of delivery information rendered Connectec’s proposal technically unacceptable and ineligible for contract award.  The protester argues that it has been awarded contracts in the past without a proposed delivery schedule. Protest at 1. To support this assertion, the protester provided a prior solicitation under which it claims to have received award without providing delivery terms. Protester’s Comments, Nov. 5, 2007, exh. 1. Our review of this solicitation shows that it does not use the same evaluation scheme as here; delivery was not a separate evaluation factor. Id. Furthermore, even if this assertion is true, the protester cannot rely on past practices to excuse its failure to satisfy the requirements of the RFP here, as each procurement stands alone. GM Indus., Inc., B‑231998, Oct. 25, 1988, 88-2 CPD para. 388 at 5.  In our view, the RFP clearly indicated that offerors must identify a delivery date in order to be considered for award. Therefore, UNICOR reasonably excluded Connectec from consideration when the company failed to include the required delivery information in its proposal.  (Connectec Company, Inc., B-310460, November 27, 2007) (pdf)

The Air Force reasonably rejected CMC’s proposal. While the protester’s argument is focused on whether the items labeled deficiencies met (or exceeded) the RFP requirements or could be corrected through minor revisions, we note that the number of words affected and the ease of correction are not the defining considerations. Rather, even where proposal deficiencies could be corrected without lengthy revisions, the need for numerous corrections and revisions may provide a reasonable basis for an agency to conclude that the proposal evidenced an inherent lack of understanding or awareness of the current RFP’s requirements. See Pace Data Sys., Inc.; Senior Care Storage Co., B‑236083, B‑236083.2, Nov. 6, 1989, 89‑2 CPD para. 429 at 5 (even where proposal deficiencies may be viewed as minor in nature taken individually, the cumulative effect of the deficiencies is sufficient to support the agency’s conclusion that the proposal was unacceptable). Such was the case here. CMC’s proposal was not responsive to numerous aspects of the RFP, did not correspond to other aspects, and contained extraneous information. CMC does not dispute that evaluated deficiencies existed, and given the number and nature of those deficiencies--which suggested that CMC may have submitted information from an old proposal without updating various aspects of the requirements--we think the agency reasonably could conclude that CMC lacked an understanding or awareness of the RFP requirements. Further, while CMC’s proposed 50-day maintenance rotation (and other proposal features) may have exceeded the RFP requirements, the agency could view this in the context of the proposal as a whole; rather than an intended enhancement, the agency apparently considered this to be another example of the proposal’s failure to correspond to the requirements of the current RFP, reinforcing its concern that CMC did not understand, or was unaware of, the actual requirements. Again, given the nature and number of the identified deficiencies, this conclusion was unobjectionable. (C. Martin Company, Inc., B-299382, April 17, 2007) (pdf)

Here, as noted above, the solicitation specifically required that, to be evaluated as technically acceptable, an offeror’s proposed management plan must “ensure timely, professional and high quality performance.” RFP at 65. Particularly in light of the requirements at issue here, the length of an offeror’s proposed workweek is clearly encompassed within the stated requirement for high quality performance. Further, in conducting discussions with WII regarding this matter, the agency explicitly advised WII that the agency considered WII’s proposed [DELETED] workweek to be “excessive,” and that such a management approach would “exhaust and demoralize a guard force.” Notwithstanding this explicit language indicating that the proposed workweek was unacceptable to the agency, WII neither provided a meaningful response to the agency’s concerns, nor revised its proposed management approach. Procuring agencies are generally in the best position to determine their actual requirements and the best method for meeting them. In reviewing protests challenging an agency’s assessments with regard to a particular performance approach, our Office will not substitute our judgment for that of the agency; rather, we will review the record to determine whether the judgments are reasonable and consistent with the solicitation criteria. See, e.g., RMS Indus., B-247233, B-247234, May 1, 1992, 92-1 CPD para. 412. Here, based on our review of the entire record, we find no basis to question the agency’s determination that WII’s proposed [DELETED] workweek was excessive, that it would exhaust and demoralize WII’s guard force and, therefore, that it rendered WII’s proposal unacceptable for failure to comply with the solicitation requirement that an offeror’s proposed management approach would “ensure timely, professional and high quality performance.” Although WII continues to express disagreement in this regard, it has provided nothing to demonstrate that the agency’s determination was unreasonable. (Wackenhut International, Inc., Wackenhut Puerto Rico, Inc., Wackenhut Jordan, Ltd.--a Joint Venture, B-299022; B-299022.2, January 23, 2007) (pdf)

Here, as discussed above, the solicitation defined the acceptable level of performance in terms of the maximum percent of defective work that will be allowed. RFP, Performance Work Statement, at 31. More specifically, the solicitation provided that “[l]aundry is clean, dry, free of lint and odor, spots and stains removed,” and that the acceptable level of deviation from this standard was limited to “5% per month.” Similarly, with regard to damaged items, the solicitation’s “Performance Standard” specified that, “[l]aundered items are not physically damaged due to improper processing or carelessness,” and that the acceptable deviation from this standard was limited to “2.5% per month.” RFP at 50-51. The agency concluded that, contrary to the solicitation’s specified requirements, Stewart’s proposal effectively provided that virtually every laundered item could permissibly contain holes and stains--provided the holes were limited in size and number to the alternative standards that Stewart identified, and provided the stains were similarly limited in size and number and/or were sufficiently “light.” Accordingly, the agency concluded that Stewart’s proposal did not offer to meet the solicitation’s stated performance requirements.  Stewart complains that the agency should have interpreted the quality standards identified in its proposal as applying only to the portion of items that the solicitation permitted to deviate from the stated requirements--that is, 5 percent per month with regard to stained items and 2.5 percent per month with regard to damaged items. However, nothing in its proposal advised the agency regarding this purported interpretation and intent to comply with the solicitation’s specified quality standards.  Here, Stewart’s inclusion of quality standards that conflicted with the solicitation’s stated standards--even if viewed in a light most favorable to Stewart--created an ambiguity regarding Stewart’s intention to comply with the RFP’s requirements. Since the agency selected Balfurd’s proposal for award without discussions, as contemplated by the solicitation, the agency properly rejected Stewart’s proposal as technically unacceptable for failure to clearly meet the solicitation’s stated requirements. On the record here, we have no basis to question the agency’s actions. (Stewart Distributors, B-298975, January 17, 2007) (pdf)

The agency’s rejection of GWI’s proposal was unobjectionable. DLA explains, citing Defense Federal Acquisition Regulation Supplement sect. 204.7201, that a CAGE code is a “contractor identification code” assigned to a contractor’s name and address, so as to avoid any confusion regarding the entity identified. Letter from DLA to GAO, Dec. 15, 2006, at 1. CAGE codes are assigned to discrete business entities for a variety of purposes (e.g., facility clearances and pre-award surveys) to dispositively establish the identity of a legal entity for contractual purposes. See Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD para. 68 at 5. Here, the RFP included a CAGE code for Dana’s part that identified the manufacturing entity as “Dana Corp. Spicer Universal Joint Div.,” at an address in Holland, Ohio. The agency states, and GWI does not dispute, that GWI’s proposed parts were to be manufactured by [DELTED], not by Dana’s Spicer Universal Joint Division in Holland, Ohio, and Dana has advised the agency that it is not aware of any approved sites to manufacture this part outside the United States. Agency Motion to Dismiss, exh. 2, at 2. The agency advises that [DELETED] is not included under the specified CAGE code; as a foreign entity, it would be assigned a different code, specifically, a North Atlantic Treaty Organization commercial and government entity code. Thus, while GWI appears to be proposing the specified Dana part, the information subsequently developed by the agency indicates that the part would be manufactured by [DELETED] that was not contemplated by the agency’s source approval. We think this was a legitimate and reasonable basis for the agency’s action here, that is, rejecting GWI’s proposal as unacceptable.  (Gear Wizzard, Inc., B-298993, January 11, 2007)  (pdf)

The record here shows that Prudent failed to follow the detailed instructions set forth in section M of the RFP requesting experience information and explaining how that information would be reviewed. As set forth above, the RFP required offerors to provide sufficient information to establish that the offeror (or its key personnel, or its subcontractors) had relevant (“same or similar”) experience within the past 3 years; to make this showing, offerors were asked to identify up to five contracts for review by the agency. For these five contracts, offerors were to describe “the type and quantity of service provided, the value of those services, the contract award date, the contract completion date, and the name and title, address, telephone number, fax number, and email address (if available) of a person familiar with the offeror’s performance.” RFP at M-3. Although Prudent’s proposal broadly claims to meet the RFP’s experience requirements in a brief two-paragraph discussion titled "Experience and Past Performance," Agency Report (AR), Tab 7, at 15, there is no place in its proposal where it provides the information requested by the RFP so that HUD evaluators could verify for themselves whether the company meets the experience requirement. Specifically, there is also no place in the proposal where Prudent identifies five contracts for review by the agency; there is no description of any kind about the work performed; and there is no indication of when the relevant work might have occurred. At best, the proposal identifies seven entities as references--two for Prudent, and five others, one for each of five subcontractors--and provides for each a point of contact, mailing address, and telephone number. AR, Tab 7, at 18-19. In our view, given the detailed instructions in section M of the solicitation about the information the agency needed to make its assessment, these omissions alone provide a reasonable basis for the agency to conclude that the proposal was unacceptable. See, e.g., Interstate Gen. Gov’t Contractors, Inc., B-290137.2, June 21, 2002, 2002 CPD para. 105 at 5 (it is the responsibility of the offeror to provide sufficient information about the projects in its proposal to ensure they will be assessed as relevant). (Prudent Technologies, Inc., B-297425, January 5, 2006) (pdf)

Nothing in Marine Industries’ proposal establishes that a company can implement a QA system based on ISO 9001-2000 only as an upgrade to an existing QA system. Further, Marine Industries has provided no evidence that implementation of a plan based on ISO 9001-2000 necessarily implies the existence of a precursor plan, such that the agency should have evaluated the proposal based on such an assumption. Accordingly, because the protester failed to represent that its new QA plan would be in place by the time of contract award and failed to furnish any description of an already implemented QA plan, we think that the evaluators reasonably determined that it had failed to comply with the RFP requirement for a description of its company QA plan for certifying completed work. (Marine Industries NW, B-297207, December 2, 2005) (pdf)

A quotation that fails to conform to material terms and conditions of the solicitation should be considered unacceptable and may not form the basis for an award. CAMS Inc., B-292546, Oct. 14, 2003, 2003 CPD para. 191 at 2; L.S. Womack Inc., B-244245, Sept. 30, 1991, 91-2 CPD para. 309 at 2. Material terms of a solicitation are those which affect the price, quantity, quality, or delivery of the goods or services offered. Seaboard Elecs. Co., B-237352, Jan. 26, 1990, 90-1 CPD para. 115 at 3. Here, Muddy Creek’s quotation altered several material terms of this solicitation. Specifically, Muddy Creek’s quotation altered the location of deliveries, limited the type of modified meals available, and added terms regarding the advance notice of the number of meals to be provided. Since Muddy Creek’s quotation failed to conform to material terms of the solicitation, the agency correctly deemed the quotation unacceptable. As a final matter, we recognize that certain conversations between Muddy Creek and Bureau employees may have led the company to expect that it would be awarded a sole-source contract, and that Muddy Creek apparently thought the RFQ here was that sole-source contract, and not a competitive solicitation. Once Muddy Creek received the RFQ, however, the protester’s continued expectation that it was receiving a sole-source contract was unreasonable. The solicitation indicated it was a request for quotations on its face, and it included a description of the basis for award, which listed the factors of past performance, ability to meet schedule, price, and responsiveness. Muddy Creek, therefore, should have realized the agency was not negotiating a sole-source contract, but was conducting a competition, and cannot now prevail in its protest that it was treated unreasonably when the agency rejected its quotation because of the changes Muddy Creek made to the material terms and conditions of the solicitation. (Muddy Creek Oil and Gas, Inc., B-296836, August 9, 2005) (pdf)

Before leaving this topic, we recognize that the agency and Titan argue that since this was a performance-based procurement the agency was evaluating technical solutions, not staffing levels. They also point out, correctly, that there was no requirement for any particular staffing approach, and that this means the changes made by Titan in response to the reopened competition should not be seen as affecting the nature of Titan's performance-based offer. We cannot agree with this assertion. The solicitation's evaluation scheme contained a management/technical evaluation factor which was supposed to include a review of the evidence of an offeror's technical proficiency. RFP amend. 3, at 6. In addition the final memorandum of the source selection evaluation board (SSEB)--which was based on Titan's earlier technical proposal, since revised technical proposals were not submitted here--expressed the view that Titan's approach allowed "[reduced] staffing levels in the out years while maintaining a highly skilled technical staff." AR, Tab 23, at 25. Given the changes Titan made to the mix of technical staff in its final FRP, we are not sure this observation remains valid for this proposal. In our view, the situation here is similar to the situation we encountered in DynaLantic Corp. , supra . In DynaLantic , after originally making award, but then finding it necessary to terminate that contract for default, an agency requested an additional round of best and final offers (BAFO) from the remaining offerors, limiting them to price and delivery schedule revisions. The successful offeror in the recompetition included in its revised BAFO a list of six changes which allowed it to reduce its earlier price by 48 percent. In our decision, we concluded that the awardee's reduced price, in fact, reflected changes to its technical proposal, contrary to the ground rules established for the submission of revised BAFOs. Here, we think Titan has essentially done the same thing. In changing the staffing mix of labor categories overall, and in offering a completely different staffing approach for off-site work, Titan did not follow the ground rules set by the agency in this reopened competition. As a result, offerors that followed the agency's instructions were placed at a disadvantage, and did not have the same opportunity to achieve the price reduction Titan was able to achieve. (Resource Consultants, Inc., B-293073.3; B-293073.5; B-293073.6, June 2, 2004) (pdf)

Gold Cross next asserts that the agency improperly eliminated its quotation from the competition based on price alone, without considering the high quality of its technical submission. This argument is without merit. While the RFQ provided for a best value evaluation based on comparative technical and price considerations, the agency also was required to consider whether the protester's quoted price was too high in an absolute sense. In this regard, before awarding a fixed-price contract, an agency is required to determine that the price offered is fair and reasonable. Federal Acquisition Regulation (FAR) 15.402(a). Here, the agency states that it rejected Gold Cross's quotation pursuant to the contracting officer's determination that the quoted price was so high that award to the firm would not be in the public interest, no matter the quality of its technical submission. Contracting Officer's Statement of Facts at 2. This was tantamount to finding that Gold Cross's price was unreasonably high. A price reasonableness determination may be based on various price analysis techniques, including comparison of prices received among themselves and to an independent government estimate (IGE). FAR 15.4041(b)(2). A price reasonableness determination is a matter of administrative discretion that we will question only where it is clearly unreasonable or there is a showing of bad faith or fraud. The Right One Co. , B-290751.8, Dec. 9, 2002, 2002 CPD 214 at 5. The contracting officer considered the prices received and the IGE, and concluded that Gold Cross's price was so high--approximately 20 times the awardee's price, 8 times the third vendor's price, and 10 times the IGE--that award could not be made to the firm. Given this great disparity in pricing, there was nothing improper in the contracting officer's determining that Gold Cross's price was unreasonable and eliminating it from the competition on this basis. See , e.g. , Rhimco Indus., Inc. , B-247600, June 8, 1992, 92 CPD 499 at 2 (a price 42 percent higher than government estimate constitutes an unreasonable price). Since Gold Cross could not receive the award due to its unreasonable price, the results of any technical evaluation the agency may have subsequently performed were immaterial; even if Gold Cross's technical submission received the highest possible rating, it could not receive the award due to its unreasonable price. Consequently, there was nothing improper in the agency's failure to evaluate Gold Cross's technical submission.  (Gold Cross Safety Corporation, B-296099, June 13, 2005) (pdf)

In proposing a keyboard that has 107 keys, ITG's proposal failed to meet the mandatory requirement of the solicitation that the keyboard have 104 keys, and therefore could not be accepted for award. See White Storage & Retrieval Sys., Inc. , B-250245, Jan. 19, 1993, 93-1 CPD 70 at 3. Although the agency assigned ITG's proposal a rating of acceptable under this factor, the record shows that the agency recognized the proposal's non-compliance with this solicitation requirement in eliminating its proposal from the competitive range.  (Integration Technologies Group, Inc., B-295958; B-295958.2, May 13, 2005) (pdf)

We turn then to the protester's argument that it included a pricing contingency in its proposal and deviated from the required delivery schedule based on its understanding that the Navy was seeking an improved CNVD, and that it would have offered a lesser quality system without the pricing contingency and delivery schedule deviation if it had been apprised that the Navy was willing to consider systems that were not an improvement over its "baseline" CNVD. [8] While the protester contends that "[i]n order to exceed the performance of the Baseline unit, OSTI was required to incorporate an expensive high-performance image intensifier into its device whose cost and delivery could not be guaranteed by the manufacturer," the solicitation did not require the protester to incorporate the particular tube in question into its product. The protester elected to do so itself. Moreover, even assuming for the sake of argument that the RFP had required this particular tube and that the supplier of the tube would not guarantee its price, this did not require the protester to pass any risk of a price increase on to the government. Solicitations frequently require offerors to bear pricing risks, and the bottom line is that where an RFP requires fixed prices and a proposal does not offer fixed prices, the proposal as submitted cannot be considered for award. Georgetown University--Recon. , B-249365.3, June 7, 1993, 93-1 CPD 434 at 5. Similarly, award generally cannot be made on the basis of a proposal that takes exception to a required delivery schedule. American Fuel Cell & Coated Fabrics Co. , B-293020, Jan. 12, 2004, 2004 CPD 13 at 5. (Optical Systems Technology, Inc., B-292743.2, November 12, 2004) (pdf)

The agency reasonably rejected TJLs proposal as unacceptable. One of the factors for which TJLs proposal received a no go rating was experience building castinplace concrete structures, under which offerors were to provide documentation of at least two projects, with no time frame limits, that demonstrate experience building cast-in-place concrete structures. RFP at 21. In response to this requirement, TJLs proposal stated only that [TJL] does not self perform the actual cast in place concrete. However, TJL does perform the excavation and backfill for the subcontractor for this work. TJL Proposal, Vol.1,3.7. The proposal made no mention of projects--performed by TJL or a subcontractor--involving castin-place concrete structures, and did not include any other information--such as the name of the subcontractor with which it previously had performed--that might give the agency further guidance in evaluating the protesters experience in this area. Given TJLs manifest failure to present the required information establishing that it possessed the required experience, the agencys no go rating was reasonable.  (T. J. Lambrecht Construction, Inc., B-294425, September 14, 2004) (pdf)

Here, SuccessTech’s proposal failed to meet a material RFP requirement, and therefore was unacceptable. A firm delivery or service commencement date set forth in a solicitation is a material requirement, precluding acceptance of any proposal not offering to meet that date. Hawaiian Tel. Co., B-187871, May 2, 1977, 77‑1 CPD ¶ 298 at 9. In a negotiated procurement, any proposal that fails to conform to material terms and conditions of the solicitation is unacceptable and may not form the basis for an award. Plessey Elec. Sys. Corp., B‑236494, Sept. 11, 1989, 89-2 CPD ¶ 226 at 2; Telenet Communications Corp., B‑224561, Feb. 18, 1987, 87‑1 CPD ¶ 181 at 3. The RFP stated that the performance period (contract term) “shall be for a period of 12 months commencing or within 15 days after notice/date of award.” RFP § F.2. The RFP’s statement of work provided that within “15 calendar days after award, the Contractor shall begin work for the Contract period.” RFP § C.9.b. SuccessTech’s initial startup plan did not include any identifiable time frames or schedule. When permitted to supplement its plan in discussions, SuccessTech stated that it assumed “at least thirty days advanced notice of contract award” and provided a 30‑day transition schedule leading up to a start date when transition was to be completed and the firm would “assume all duties.” Protest attach. 9, at 2-3. Since SuccessTech’s plan did not call for contract performance to begin within the required 15 days of award, it could not be accepted for award. (SuccessTech Management & Services, B-294174, July 6, 2004) (pdf)

The Federal Acquisition Regulation (FAR) authorizes the contracting officer to exclude proposals from the competitive range that are not among the “most highly rated.” FAR § 15.306(c)(1). Further, an agency is not generally required to include a proposal in the competitive range when, in order to be selected for award, the offeror would have to essentially rewrite its entire proposal. See, e.g., Source AV, Inc., B-234521, June 20, 1989, 89-1 CPD ¶ 578. Finally, agencies are not required to retain a proposal in the competitive range simply to avoid a competitive range of one, since conducting discussions and requesting final revised proposals from offerors with no reasonable chance of award would benefit neither the offerors nor the government. SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD ¶ 59 at 5. (Fiserv NCSI, Inc., B-293005, January 15, 2004 (pdf)

As indicated above, SOCOM relied upon the tests performed by an ISO-certified and accredited laboratory testing facility to conclude that USIA's material did not meet the abrasion requirement. SOCOM explains that testing of USIA's material was performed by one of Natick's evaluators, who has a 4-year degree in textile technology and over 15 years of experience in performing the test. Although USIA has presented test results purportedly performed by Thor-Tex's manufacturer showing compliance with the abrasion requirement, the submitted documentation is not on its face designated as a test by the manufacturer and does not identify the product number of the tested material, and does not reflect that the tests were performed by an ISO‑certified and accredited laboratory facility. Thus, the protester has provided no basis to question the independent tests of the ISO-certified facility. While USIA argues that the varying test results suggest that the agency may have mishandled the storage and/or rushed the testing of the fabric, we find no credible evidence of mishandling or improper testing by this ISO‑certified facility, to which the offerors directly delivered their samples. Given the test results, we find that the agency properly eliminated USIA's proposal from the competition prior to the full technical proposal evaluation.  (USIA Underwater Equipment Sales Corporation, B-292827.2, January 30, 2004) (pdf)

DSCC’s argument does not address the problem with Flinchbaugh’s quotation. To be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Fox Dev. Corp., 287118.2, Aug. 3, 2001, 2001 CPD ¶ 140 at 2. Here, although it is true that the RFQ did not expressly preclude the possibility of subcontracting the packaging, Flinchbaugh’s quotation provided for both the inspection and acceptance at the packaging facility, instead of at the actual manufacturing facility as required by the provisions in section B. The fact that the solicitation allows multiple inspection points does not mean that acceptance can be anywhere but at the manufacturing facility, as required by the RFQ. There is only one “final acceptance” under a contract for supplies. That is, acceptance is acknowledgment by the agency that the supplies conform with applicable contract quality and quantity requirements, and title to supplies passes to the government upon formal acceptance, regardless of when or where the government takes physical possession; this is the point where the government obtains title to the supplies and assumes the risk of loss. See FAR §§ 46.501, 46.505. Accordingly, compliance with the requirement that acceptance be at the manufacturing facility was a material term, which Flinchbaugh’s quotation did not satisfy; thus, an order could not be issued based on Flinchbaugh’s quotation. See Rel-Tek Sys., & Design, Inc., supra; Scientific-Atlanta, Inc., B-255343.2,B-255343.4, Mar. 14, 1994, 94-1 CPD ¶ 325 at 9.  (CAMS Inc., B-292546, October 14, 2003) (pdf)

By placing language in its proposal which stated that providing the required capacity was subject to availability, Americom made both its technical offer and its fixed pricing contingent, in response to a solicitation which required fixed prices for the specific proposed technical solution. This is an impermissible deviation from a material RFP term that renders the proposal unacceptable and ineligible to form the basis for award. SWR, Inc., B-284075, B-284075.2, Feb. 16, 2000, 2000 CPD ¶ 43 at 6-7; Beckman Coulter, B-281030, B-281030.2, Dec. 21, 1998, 99-1 CPD ¶ 9 at 6. Americom’s protest characterization of this contingency as standard language that it was willing to remove from its proposal is without consequence or legal effect. This impermissible contingency rendered Americom’s proposal technically unacceptable and properly subject to elimination from the competitive range; an agency is under no obligation to conduct discussions with an offer to permit it to cure the noncompliance which provided the basis for the proposal’s exclusion. SOS Interpreting, Ltd., B-287505, June 12, 2001, 2001 CPD ¶ 104 at 12.  (Americom Government Services, Inc., B-292242, August 1, 2003) (pdf)

It is true that Anteon's proposal did not satisfy the minimum water depth requirement so that the agency essentially waived the requirement when it concluded that the 1-inch shortfall was acceptable. Nevertheless, we find no prejudice to the protester in the agency's actions, as the water depth shortfall was reasonably determined to be “negligible” and the protester has not shown how it would have altered its proposal to improve its competitive standing had it been given an opportunity to respond to the relaxed requirements. Absent prejudice to the protester, we deny this ground of protest. See 4-D Neuroimaging, B-286155.2, B‑286155.3, Oct. 10, 2001, 2001 CPD ¶ 183 at 10-11; see also Magnaflux Corp., B‑211914, Dec. 20, 1983, 84-1 CPD ¶ 4 at 3-4 (agency permitted to waive deviation from specification which was minor and did not result in prejudice). (Gulf Copper Ship Repair, Inc., B-292431, August 27, 2003)  (pdf)

An agency is not required to include an offeror in the competitive range when the proposal, to be acceptable, would have to be revised to such an extent that it would be tantamount to a new proposal. Source AV, Inc., B-234521, June 20, 1989, 89-1 CPD ¶ 578. Even where individual deficiencies may be susceptible to correction through discussions, the aggregate of many such deficiencies may preclude an agency from making an intelligent evaluation, and the agency is not required to give the offeror an opportunity to rewrite its proposal. Ensign-Bickford Co., B-211790, Apr. 18, 1984, 84-1 CPD ¶ 439. Accordingly, on the basis of the record here, we find no basis to question the agency's exclusion of Austin's proposal from the competitive range.  (The Austin Company, B-291482, January 7, 2003)  (txt version)

While exclusion of technically unacceptable proposals is frequently permissible, it is not generally required. More specifically, the significance of the weaknesses and/or deficiencies in an offeror's proposal, within the context of a given competition, is a matter for which the procuring agency is, itself, the most qualified entity to render judgment.  (Albert Moving & Storage, B-290733; B-290733.2, September 23, 2002)  (txt version)

We conclude that the agency reasonably rejected CSWI's proposal. As quoted above, in describing its proposed program/project manager, CSWI duplicated the narrative from the RFP for the contract manager position and inserted a per-hour ceiling labor rate. It is this duplication of contract manager requirements, plus the insertion of an hourly rate, that caused CSWI's proposal to be considered, at best, ambiguous with respect to whether the firm intends to provide contract management services at no direct cost to the government in accordance with the terms of the RFP or whether the firm intends to charge an hourly rate as contained on page B-69 of its proposal for the required management services. On this record, where CSWI's intentions are not clear and unambiguous from the face of its proposal in terms of providing contract management services at no direct cost to the government, we have no basis to question the reasonableness of the agency's rejection of the firm's proposal.  (Consolidated Services Worldwide, Inc., B-290751.7, October 21, 2002)  (pdf)

Further, although SHBS's proposal identifies more than 20 architects and engineers and includes their resumes and professional certificates, it fails to specify which of these personnel will be used to perform the rapid response design work.  Based on SHBS's failure to indicate which of its professional personnel would perform the design work, the agency reasonably concluded that its proposal was weak under the technical capability subfactor.

It was incumbent on the protester to provide adequate information, beyond mere promises to hire qualified subcontractors when the need arises, to permit the agency to evaluate the firm's capability under this element. See DynCorp Int'l LLC, B‑289863, B‑289863.2, May 13, 2002, 2002 CPD P: 83 at 9. Given SHBS's failure to provide the required information, the agency reasonably concluded that its proposal was weak in this area.  (Sayed Hamid Behbehani & Sons, WLL, B-288818.6, September 9, 2002)  

Our Office has found no reason to question similar cascading set-aside preference provisions used by HUD for certain real estate services. HUD has explained that such an approach promotes the interests of small business concerns and also provides the agency with an efficient means to continue the procurement in the event that sufficient small business participation is not realized. HUD explains that the cascading set-aside approach was formulated in conjunction with, and has been endorsed by, the SBA. See The Urban Group, Inc.; McSwain and Assocs., Inc., B-281352, B-281353, Jan. 28, 1999, 99-1 CPD ¶ 25 at 7. The cascading set-aside preference provision used in the RFP here reasonably put large businesses on notice that, if the agency receives a sufficient number of eligible small business offers, large business proposals received simply would not be considered for award. See id. As such, the cascading set-aside preference terms establish, at best, only a potential for participation of large businesses in the competition for award.  (Carriage Abstract, Inc., B-290676; B-290676.2, August 15, 2002) (pdf)

The Navy reasonably determined that G&M's management plan consisted largely of conclusory statements and lacked supporting documentation.  For example, while acknowledging that its proposal did not expressly address the management of subcontractors, G&M contends that its proposal did specify having an International Organization for Standardization (ISO) 9000 quality program, which includes a subcontractor management program.  Notwithstanding this claim (which itself was unsupported), it was G&M's responsibility to demonstrate in its proposal how it intended to successfully accomplish and manage all PWS requirements; it was not the agency's obligation during the evaluation process to fill in the gaps or to perform a “leap of faith.”  Since G&M had the burden of submitting an adequately written proposal, yet failed to do so, we have no basis to question the reasonableness of the agency's evaluation.  Quality Elevator Co., Inc., B-271899, Aug. 28, 1996, 96-2 CPD ¶ 89 at 4.  (G&M Industries, B-290354, July 17, 2002)

Our analysis begins with the premise that an offeror may elect not to charge for a certain item and if it indicates a commitment to furnish the item in question, for example, by inserting "$0" in its proposal, its proposal is compliant. GTSI Corp., B-286979, Mar. 22, 2001, 2001 CPD ¶ 55 at 6; Integrated Protection Sys., Inc., B-229985, Jan. 29, 1988, 88-1 CPD ¶ 92 at 2. Here, while under the terms of the RFP, offerors were requested to insert a "service fee" for each period of performance, the RFP did not prohibit a firm from proposing a fee of zero, or even a negative fee, and such a fee was not inconsistent with the terms of the RFP. Under N&N's pricing scheme, where the firm inserted on the RFP schedule a service fee of "$zero" for the base period and a fee of zero plus an incentive (discount fees/rebates) for the option periods, the firm committed to provide the required services for no cost to the government in any of the performance periods. N&N did not take exception to the RFP requirement to identify its proposed service fees; rather, N&N elected not to charge the agency for providing the required services in any of the performance periods, plus it proposed discount fees/rebates in the option periods. We have no basis to object to N&N's pricing scheme.  (SatoTravel, B-287655, July 5, 2001)

The agency maintains that there was no difference between Petchem's initial proposal and its final proposal revision in terms of the firm's commitment to satisfy the RFP's transit speed requirement, especially since under the predecessor contract, Petchem's vessel was required to satisfy the same transit speed requirement. Memorandum from CO to GAO (Mar. 8, 2001). The agency notes that the reference to "@ 80%" in Petchem's initial proposal had been inserted by hand to the vessel characteristic sheet completed by Petchem for the "Christine S"; the agency viewed the failure of Petchem to add that handwritten notation to the same sheet in its final proposal revision and the failure of the agency to include "@ 80% rated horsepower" in Petchem's contract as clerical errors.  Here, there is no dispute that the RFP's minimum transit speed requirement, as quoted above, was material. Although Petchem stated in its initial proposal that its proposed vessel would meet this material requirement, in its final proposal revision, Petchem did not state that its proposed vessel would transit at 9 knots in moderate weather "@ 80% rated horsepower." Since Petchem's final proposal revision did not satisfy the RFP's minimum transit speed requirement, the agency's acceptance of the firm's proposal meant that the agency waived this requirement for Petchem. The award to Petchem on the basis of its nonconforming proposal was improper.  (Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001)

Here, it is undisputed that the solicitation specifically mandated submission of a letter of intent for any proposed project manager who was not employed by the offeror at the time the proposal was submitted. Further the solicitation identified the project manager as the only "key personnel," and described the role of the project manager as "essential to the work to be performed." RFP at 20. Clearly, in light of the essential nature of this position, submission of the required assurance that a non-employee proposed as project manager would, in fact, be available to serve as such constituted a material solicitation requirement. Indeed, Triumph's ultimate inability to provide the sole "key personnel" it proposed, and on which its proposal was evaluated, demonstrates the significance of this requirement. Accordingly, Triumph's failure to comply with this requirement rendered its proposal technically unacceptable and, thus, could not form a valid basis for contract award.  (Special Operations Group, Inc., B-287013; B-287013.2, March 30, 2001)

Where an offeror proposes a particular individual for a key position with the intention of removing that individual from the position after an unspecified transition period under the contract, and the agency relies on the offeror's representation that the individual will be performing the work in evaluating its proposal, the agency reasonably rejected the proposal once the agency learned of the offeror's actual intent.  (S. C. Myers & Associates, Inc., B-286297, December 20, 2000)

Agency reasonably rejected as technically unacceptable a proposal that was noncompliant with material solicitation requirements that proposed service engineers possess current training certifications issued by specified equipment manufacturers.  (Techseco, Inc., B-284949, June 19, 2000)

Agency's rejection of the protester's proposal on a construction project as technically unacceptable is unobjectionable where the proposal's project schedule failed to address demobilization, which was reasonably considered to be a material solicitation requirement; the fact that neither the protester's nor the awardee's proposals addressed final inspection does not render the agency's rejection improper, because final inspection was the agency's responsibility, so that the offerors' failure to address this item was immaterial.  (Encorp-Samcrete Joint Venture, B-284171; B-284171.2, March 2, 2000)

Any proposal that does not conform to material terms and conditions of the RFP should be considered unacceptable and may not form the basis for an award. Integrated Sys. Group, B-272336, B-272336.2, Sept. 27, 1996, 96-2 CPD para. 144 at 6. When an agency relaxes its requirements, either before or after receipt of proposals, it must issue a written amendment to notify all offerors of the changed requirements. CNA Indus. Eng'g, Inc., supra, at 4. We will sustain a protest where an agency, without issuing a written amendment, relaxes an RFP specification to the protester's possible prejudice (e.g., where the protester might have altered its proposal to its competitive advantage had it been allowed to respond to the relaxed requirements). Id.  (SWR, Inc., B-284075; B-284075.2, February 16, 2000)

In a negotiated procurement, a proposal that fails to conform to material solicitation requirements is technically unacceptable and cannot form the basis for award. See International Sales Ltd., B-253646, Sept. 7, 1993, 93-2 CPD para. 146 at 2. Here, the record shows that the protester clearly took exception to material solicitation requirements, thus rendering its proposal technically unacceptable.  (Wellco Enterprises, Inc., B-282150, June 4, 1999)

The record indicates that the agency established the competitive range on the basis that the three proposals included in the competitive range were considered the most highly rated proposals and that Spectrum's proposal was evaluated as unacceptable and therefore not among the most highly rated proposals. The record shows that at the time of this evaluation, the TET determined a variety of areas in Spectrum's proposal that were unacceptable primarily because of perceived manning shortages. The agency now admits that its evaluation of Spectrum's proposal that served as the basis for the competitive range determination was defective because several of concurrently stated reasons for finding Spectrum's proposal unacceptable were unsupported, and that only the security aspect of Spectrum's proposal is now regarded as unacceptable. None of the proposals included in the competitive range was found to be technically acceptable, but all were rated susceptible of being made acceptable (the same rating that was initially assigned to Spectrum's proposal). Thus, we cannot find from this record that Spectrum would not have been among the most highly rated proposals on the procurement, which contemplated award to the low-priced acceptable offeror.  (Spectrum Sciences & Software, B-280700, November 9, 1998)

Based on our review, we agree with the protester that the three deficiencies in Nations' proposal cited by the agency for its elimination from the competitive range did not provide a reasonable basis to reject Nations' proposal, as they were either the result of misevaluation, or readily correctable, or similar to features in the competitive range proposals. Furthermore, although, as noted, the agency states that Nations' deficiency under the staffing sub-subfactor was less important than the other deficiencies, we find that the contracting officer could not reasonably conclude that Pulau's staffing approach was better justified and more detailed than Nations' as the stated basis for distinguishing the two proposals.  (Nations, Inc., B-280048, August 24, 1998)

Global contends that ADCI’s bid was noncompliant with the requirements of the RFQ. Pl.’s Mem. at 2. Plaintiff correctly cites the principle that award to a bidder whose proposal is materially noncompliant with a solicitation’s requirements is improper. See E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996) (noting that “a proposal that fails to conform to the material terms and conditions of the solicitation should be considered unacceptable and a contract award based on such an unacceptable proposal violates the procurement statutes and regulations” (internal quotations and citations omitted)). But the test for noncompliance is generally a test of facial noncompliance, not a test as to whether the subjective, undisclosed intent of an offeror is noncompliant with the solicitation’s requirements. See id. at 449 (upholding a contract award because the protestor did not show that the government “acted arbitrarily and capriciously in awarding the contract on the basis of its belief that [the awardee’s] proposal included a [required item]”).

There was no requirement in the solicitation that ADCI note or describe its contemplated LESO, and ADCI chose not to do so. If, as it now appears, ADCI priced its bid assuming that the Coast Guard would allow it to use Telecom Italia as a LESO, that assumption was not apparent on the face of its bid. ADCI’s compliance with the requirement that Stratos remain the LESO for the cutters’ INMARSAT communications is a matter of contract administration, or contractor responsibility, not a matter of the responsiveness of ADCI’s bid. See SecureNet Co. v. United States, 72 Fed. Cl. 800, 810 (2006) (noting that when a contractor’s “violation of [a contract requirement] would not be apparent until actual contract performance,” the government had no duty to evaluate whether the contractor’s proposal had taken exception to that requirement); see also Radio TV Reports, Inc., B-192958, 79-2 CPD ¶ 27 (Comp. Gen. July 12, 1979) (denying protest despite post-award allegations that the awardee did not intend to perform contract as stated in its bid, because such concerns relate to the contractor’s responsibility, not to the responsiveness of the bid); E. Brokers, Inc. & Jan Pro Corp., B-193774, 79-1 CPD ¶ 75 (Comp. Gen. Jan. 31, 1979) (denying protest despite allegations of a below cost winning bid and concerns that the awardee’s contract performance would be substandard, because these issues relate to the contractor’s responsibility or contract administration, not to the responsiveness of the winning bid). As the Government Accountability Office (GAO) has stated:

We [the GAO] have held on numerous occasions that the test to be applied in determining the responsiveness of a bid is whether the bid as submitted is an offer to perform, without exception, the exact thing called for in the invitation, and upon acceptance will bind the contractor to perform in accordance with all the terms and conditions thereof. Unless something on the face of the bid, or specifically a part thereof, either limits, reduces or modifies the obligation of the prospective contractor to perform in accordance with the terms of the invitation, it is responsive.

To Eugene Drexler, 49 Comp. Gen. 553, B-168518, 1970 CPD ¶ 21 (Comp. Gen. Mar. 10, 1970) (citations omitted). Because ADCI’s proposal was facially compliant with every solicitation requirement, and its price was determined to be reasonable and the lowest of the three bids received, ADCI’s proposal was eligible for award.

Plaintiff relies on numerous GAO decisions which have sustained protests because an awardee tardily offered to correct a noncompliant bid after award. See Pl.’s Reply at 24. However, each of the winning bids discussed in these cases was noncompliant on its face. See Universal Yacht Servs., Inc., B-287071, B-287071.2, 2001 CPD ¶ 74 (Comp. Gen. Apr. 4, 2001) (sustaining protest because awardee’s proposal did not promise required performance and the resulting contract waived the solicitation requirement that the awardee had not promised to deliver); Tri-State Gov’t Servs., Inc., B-277315, B-277315.2, 97-2 CPD ¶ 143 (Comp. Gen. Oct. 15, 1997) (sustaining protest where awardee had submitted a price schedule which did not conform to the format required by the solicitation, thus reaping an advantage not allowed other offerors); Multi-Spec Prods. Group Corp., B-245156, B-245156.2, 92-1 CPD ¶ 171 (Comp. Gen. Feb. 11, 1992) (sustaining protest where awardee had deleted certain material solicitation specifications in its proposal but was nonetheless awarded contract); Martin Marietta Corp., 69 Comp. Gen. 168, B-233742, B-233742.4, 90-1 CPD ¶ 132 (Jan. 31, 1990) (sustaining protest because “[t]he specification required offerors to select hardware and software on the basis that requirements had to be met at the time of award” and the awardee’s proposed hardware and software did not comply with a material requirement of the solicitation). None of these decisions addressed a facially compliant bid where the awardee was alleged to have had a noncompliant intent. The authorities cited by plaintiff are inapposite, and the court found no authority to support plaintiff’s argument that a facially compliant bid must be rejected as nonresponsive in the event that post-award contract modifications are proposed by the awardee.

In plaintiff’s reply brief, Global points out another reason why ADCI’s bid was allegedly noncompliant with the solicitation: “ADCI did not comply with the requirement to reveal its exceptions and assumptions in connection with its proposal to utilize Telecom Italia for the Fleet-55 terminals.” Pl.’s Reply at 9. However, as the court has previously discussed, judicial review of the contract award focuses on whether the award was supported by facial compliance of the winning bid with the requirements of the solicitation. See, e.g., Blount, Inc. v. United States, 22 Cl. Ct. 221, 226 (1990) (“Matters of bid responsiveness must be discerned solely by reference to the materials submitted with the bid and facts available to the government at the time of bid opening.”). Here, the government could not divine that ADCI had neglected to list its exceptions and assumptions, if any, regarding Telecom Italia. By not listing any assumptions regarding Telecom Italia, ADCI’s bid was facially compliant with all material requirements of the solicitation.

Even if, as plaintiff alleges, ADCI’s bid was not compliant with the solicitation requirement demanding the submission of “[a]ny other relevant information to include exceptions/assumptions related to this RFQ,” AR at 53, the court does not regard this requirement as a material solicitation requirement in this instance. See Blount, 22 Cl. Ct. at 227 (“Material terms and conditions of a solicitation involve price, quality, quantity, and delivery.”) (citation omitted). ADCI’s proposal affirmed that ADCI [ ]. AR at 100, 107. ADCI agreed to perform all solicitation requirements without exception, including using Stratos as the LESO for contract services. Id. at 424i. Thus, all material terms of the solicitation affecting price and delivery of services have been complied with by ADCI. The court finds that ADCI’s bid was compliant with all material aspects of the solicitation, and was eligible for award.

At oral argument, plaintiff’s counsel cited for the first time to over a dozen GAO decisions which, in plaintiff’s view, hold that proposals, despite being facially compliant with a solicitation’s requirements, must nonetheless be rejected by the government as noncompliant for reasons of ambiguity, insufficient detail, later discovery of the undisclosed noncompliant intent of the offeror, or for otherwise failing to bind the offeror to a contract in accordance with the solicitation’s requirements. Defendant’s argument that ADCI’s proposal was facially compliant with the solicitation, and that award to ADCI was therefore unassailable, was presented in its moving brief. See Def.’s Mot. at 13-16. Plaintiff responded to defendant’s argument in its response/reply brief, and cited to numerous GAO decisions, discussed supra, in support of its position that later discovered “noncompliance” of a winning proposal should invalidate a contract award. See Pl.’s Reply at 21-25. Plaintiff sought to supplement those authorities at oral argument by attempting to orally file what is, in the court’s view, an improper sur-reply; plaintiff’s only justification was counsel’s vague reference to the existence of new, yet unidentified, arguments in defendant’s reply brief. Defendant would be prejudiced by plaintiff’s proposed filing, because defendant’s counsel was understandably unable to respond at oral argument to fourteen GAO decisions that were neither discussed nor cited in plaintiff’s briefs.

The court denies plaintiff’s request to consider these additional authorities, because such a use of oral argument abuses the adversarial process. The citations offered by plaintiff are not simply citations to additional authority for arguments already advanced – these decisions encompass new theories and arguments. For example, two of the decisions relied upon by plaintiff at oral argument suggest that post-award negotiations between an awardee and the government may, in certain circumstances, constitute illegal discussions under 10 U.S.C. § 2305(b)(4) [(2006)]. See Fed. Data Corp., 69 Comp. Gen. 150, B-236265, B-236265.2, 90-1 CPD ¶ 104 (Comp. Gen. Jan. 25, 1990); Dresser-Rand Co., B-237342, 90-1 CPD ¶ 179 (Comp. Gen. Feb. 12, 1990). This argument, and this statute, were never argued by plaintiff to provide reasons for sustaining this bid protest. Plaintiff must not be allowed to advance new legal theories at oral argument, prejudicing defendant. See Arakaki v. United States, 62 Fed. Cl. 244, 246 n.9 (2004) (“The court will not consider arguments that were presented for the first time in a reply brief or after briefing was complete.”) (citing Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002)); Res. Recycling Corp. v. United States, 56 Fed. Cl. 612, 618 (2003) (noting that “courts are rightfully loathe to allow a party to raise an issue at oral argument for the first time because there is a lack of notice to the court and adversary”) (citing Cubic Def. Sys. v. United States, 45 Fed. Cl. 450, 466-68 (1999)). Plaintiff waived any right to advance arguments it had not briefed prior to oral argument. See Cubic, 45 Fed. Cl. at 467 (ruling that arguments presented for the first time at oral argument were “out of order”).  (L-3 Global Communications Solutions, Inc., v. U. S., No. 08-101C, August 15, 2008) (pdf)

The Federal Circuit, in Alfa Laval Separation, Inc., held that where a protestor can demonstrate an instance in which a procuring official failed to abide by a mandatory solicitation provision, the protestor will prevail, provided it can demonstrate that, but for the violation, it had a substantial chance to receive the award. See Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999); Beta Analytics Int'l, Inc. v. United States, 44 Fed. Cl. 131, 138 (1999); MVM, Inc. v. United States, 46 Fed. Cl. 137 (2000).  (Mangi Environmental Group, Inc. v. U.S., No. 00-29C, June 29, 2000)